U.S. COMMISSION ON CIVIL RIGHTS 


LC 3981 
. M56 
2009 
Copy 2 


FT MEADE 
GenCol1 


PORITIES IN SPECIAL EDUCATION 





APRIL 2009 


BRIEFING 










U.S. Commission on Civil Rights 


The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 
Congress in 1957. It is directed to: 

• Investigate complaints alleging that citizens are being deprived of their right to vote by 
reason of their race, color, religion, sex, age, disability, or national origin, or by reason of 
fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal protection of 
the laws under the Constitution because of race, color, religion, sex. age. disability, or 
national origin, or in the administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal 
protection of the laws because of race, color, religion, sex. age. disability, or national 
origin, or in the administration of justice. 

• Serve as a national clearinghouse for information in respect to discrimination or denial of 
equal protection of the laws because of race, color, religion, sex. age, disability, or 
national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal 
protection of the laws. 


Members of the Commission 
Gerald A. Reynolds, Chairman 
Abigail Thernstrom. Vice Chair 
Todd Gaziano 
Gail Heriot 
Peter N. Kirsanow 
Arlan D. Melendez 
Ashley L. Taylor, Jr. 

Michael Yaki 


Martin Dannenfelser, Staff Director 


U.S. Commission on Civil Rights 
624 Ninth Street. NY’ 
Washington, DC 20425 
(202) 376-8128 
(202) 376-8116 TTY 



www.usccr. gov 


This report is available on disk in ASCII Text and Microsoft Word 2003 for persons with visual 
impairments. Please call (202) 376-8110. 



Minorities 


in Special Education 


A Briefing Before 
The United States Commission on Civil Rights 
Held in Washington, DC, December 3, 2007 



Briefing Report 


37kW 


Table of Contents m 


Table of Contents 

Introduction.v 

Executive Summary.1 

Summary of Proceedings.5 

Panel One.5 

Stephanie Monroe.5 

Martin Gould.6 

Reginald Felton.6 

Discussion.8 

Panel Two.11 

Matthew Ladner.11 

Daniel J. Reschly.11 

Hilary Shelton.13 

Peter Zamora.13 

William Hurd.14 

Discussion.15 

Statements.21 

Stephanie Monroe: “Minorities and Limited English Proficient Students in Special 
Education”.21 

Martin Gould: National Council on Disability Written Remarks.26 

Reginald M. Felton: “Minorities and Limited English Proficient (LEP) Students in Special 
Education”.35 

Matthew Ladner: “Minority Children and Special Education: Evidence of Racial Bias and 

Strategies to Avoid Misdiagnosis”. 40 

Daniel J. Reschly: “Minority Special Education Disproportionality: Findings and 
Misconceptions”.57 

Daniel J. Reschly: “Minority Special Education Disproportionality: Findings and 
Misconceptions” PowerPoint Presentation.67 

Hilary O. Shelton: “On the Overrepresentation of Racial and Ethnic Minority Children 
and Limited English Proficient Children in Special Education Classes".86 

Peter Zamora: “Minorities in Special Education”.93 

William H. Hurd: “Racial Discrepancies in Special Education”.97 

Public Comments.101 






























IV 


Minorities in Special Education 


Charlotte Greenbarg, President of the Broward Coalition, Inc.101 

Unidentified Bilingual Education Teacher in Massachusetts.101 

Other Submissions.101 

Statements of Commissioners.103 

Gail Heriot.103 

Arlan D. Melendez.107 

Abigail Themstrom.108 

Michael Yaki.114 

Speaker Biographies.115 

Stephanie J. Monroe.115 

Martin Gould.115 

Reginald M. Felton.115 

Matthew Ladner.116 

Daniel J. Reschly.116 

Hilary O. Shelton.116 

Peter A. Zamora.117 

William H. Hurd.117 




















Introduction 


v 


Introduction 

On December 3. 200“’. eight experts briefed members of the U.S. Commission on Civil 
Rights on whether blacks. Hispanics. Native Americans, and Limited English Proficient 
(LEP) students are misplaced in special education programs more often as a proportion of the 
general education student population, than their white. Asian, or non-LEP peers: and the 
nature, extent, and possible causes of any misplacement. In addition, the panelists were asked 
to give their views on what the federal government, schools, and parents could do to address 
the issue. 

A transcript of this briefing is available on the Commission's Web site (www.usccr.gov). and 
by request from the Publications Office. U.S. Commission on Civil Rights. 624 Ninth Street. 
N\V. Room 600. Washington. DC 20425. (202) 376-8128. publicationsuusccr.gov. 

The expens, on two panels, were 

■ Ms. Stephanie Monroe. Assistant Secretary. Office for Civil Rights (OCR), U.S. 
Department of Education. 

■ Dr. Martin Gould. Director of Technology and Research at the National Council on 
Disability. 

■ Mr. Reginald Felton. Director of Federal Relations at the National School Board 

c- 

x\ssociation. 

■ Dr. Matthew Ladner. Vice President of Research for the Goldwater Institute. 

■ Dr. Daniel Reschly. Professor of Education and Psychology* at Peabody College. 
Vanderbilt University. 

■ Mr. Hilary Shelton. Director of the NAACP. Washington. D.C. Bureau. 

■ Mr. Peter Zamora. Washington. D.C. Regional Counsel for the Mexican .American 
Legal Defense and Education Fund. 

■ Mr. William Hurd. Partner. Troutman Sanders. Richmond Office. 




























































Executive Summary 


1 


Executive Summary 

The first panelist. Assistant Secretary Monroe, asserted that a 1982 nationwide survey 
conducted by the National Academy of Sciences found that certain minorities were 
overrepresented in special education programs nationally. 1 and that more recent surveys had 
resulted in similar findings. Since 1993. OCR has conducted hundreds of compliance reviews 
on minorities in special education, and launched another major initiative in 2003. In addition, 
since 2003. Ms. Monroe recounted. OCR has conducted 61 compliance reviews and received 
144 related complaints. As a result of these reviews. OCR has identified compliance 
concerns such as teachers referring minority but not white students despite apparent 
similarities in circumstance; the use of different tests for minority and white students; and the 
placement of minority students in separate classes while white students are placed in regular 
classrooms. She stated that after OCR's completion of the first tier of such compliance 
reviews, there was a decrease in the number of minorities referred for special education. Ms. 
Monroe also stated that OCR has succeeded in improving access to gifted programs for 
minority and LEP students. 

The next panelist. Dr. Gould, noted that according to many government reports, when 
subjective rather than objective critena are used, overrepresentation in special education is 
concentrated among three minority groups. The three groups are blacks, Hispanics. and 
American Indian and Native Alaskans. He reported that Asian American children are 
underrepresented in special education. He agreed with Assistant Secretary Monroe in 
viewing the use of subjective criteria as leading to inaccuracies, and recommended the use of 
more objective assessments. In addition, he suggested that it is important for the Department 
of Education to continue to collect, publish, and monitor data, surveys, and^r reports to 
support the effective enforcement of civil rights laws in education. 

Mr. Reginald Felton agreed that minority' and LEP students are disproportionately 
represented in special education programs. He disagreed, however, with the view that 
minorities were misidentified more than non-minorities. He found it disturbing that some 
minorities were disproportionately very low-income, and expressed the belief that 
disregarding factors such as income and other sociological data would result in ineffective 
remedies for minorities in educational settings. He argued, however, that overrepresentation 
alone does not imply misidentification. and that the majority of identified students meet the 
legal definitions for eligibility. He also disagreed that schools had an incentive to place 
students in special education, since such services are costly and not adequately funded by the 
federal government. 

Dr. Matthew Ladner also agreed that certain minorities were disproportionately represented 
in special education. He offered findings drawn from his studies on special education for the 
Thomas B. Fordham Foundation, which found, after controlling for school spending, poverty, 
and other such factors, that minority students were placed into special education at higher 
rates in majority white public school districts, compared to districts with higher percentages 


1 K. A. Heller. W. H. Holtzman. S. Messick (eds.), “Placing Children in Special Education: A Strategy for 
Equity,” (Washington. DC: National Academy Press. 1982). 




2 


Minorities in Special Education 


of minority students. He recommended adoption of the conclusions of the President's 
Commission on Excellence in Special Education, - which suggested screening of students 
even before any signs of academic or other difficulties arise, and the provision of greater 
options for parents dissatisfied with public school services. 

Dr. Reschly offered statistics from Individuals with Disabilities Education Act (IDEA) 2 3 4 data, 
showing that only a very small proportion of black students (under two percent), are 
classified as mentally retarded. He expressed the belief that teachers and others have drawn 
incorrect and unfortunate stereotypes about black students because school officials and others 
interpret this data incorrectly. He explained that educators and policy makers confuse risk 
statistics (the probability that a certain ethnic group will be classified a certain way), with 
composition statistics (ethnic composition within a certain classification). He also observed 
that stigmas may be associated with special education in low-income areas, but not suburban 
areas. He asserted that mild mental retardation is subjectively determined, but that severe 
levels of mental retardation are objectively determined, and that all these categories are 
problematic for schools. 

Mr. Shelton noted his concern that special education has historically been used as a vehicle 
for discrimination against minorities. He countered Mr. Felton's statement that most 
minorities are appropriately placed in special education, arguing that the disproportionate 
numbers of minorities in special education are the result of inappropriate placements. He 
further contended that special education in predominantly minority schools is often a distinct 
place within the school where there is little learning, not a set of carefully tailored and 
appropriate services. He recommended increasing federal oversight and enforcement, and 
giving parents and students a private right of action for complaints specific to racial 
overrepresentation. 

Mr. Zamora offered an analysis of disproportionality from the point of \ iew of English 
Language Learners (ELL). He spoke of the misclassification of ELLs as special education 
students and noted that ELLs are the fastest growing subgroup of students in U.S. public 
schools, increasing ten percent annually. He argued that the primary reason for inappropriate 
student placements in special education is that teachers lack sufficient training in both special 
education and English language acquisition. He suggested that districts implement a pre- 
referral process and support continuing teacher education programs to better equip teachers 
to deal with such students. 

Mr. Hurd expressed the belief that minorities are at a disadvantage at every step of a 
placement appeal because of fewer economic resources and non-participation in parental 
support groups relevant to the issues. He expressed the belief that a solution to 
misidentification would be the greater involvement of parents in their children’s education, 
and undertaking statistical studies that identified specific correlations with socioeconomic 


2 U.S. Department of Education Office of Special Education and Rehabilitative Services,/! New Era: 
Revitalizing Special Education for Children and Their Families, Washington, DC, 2002, 
http://www.ed.gov/inits/commissionsboards/whspecialeducation/reports/index.html (accessed Jan. 30, 2009) 

3 Ibid. 

4 Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq. 





Executive Summary 


3 


factors. He reviewed the workings of the special education placement process, stating that in 
theory the parents and the school system are supposed to work as equal partners creating an 
Individualized Education Program (IEP) for the student. He expressed the belief that in 
practice parents are not fully equal partners, although the law authorizes parents to appeal a 
child's placement if they think it is inappropriate. However, he contended that because these 
appeals are often costly and because minorities often have less income, minority parents 
disproportionately do not challenge their children's placements. As a result, he argued, 
schools often offer minority students fewer and sometimes ineffective services because 
school officials assume these placements will go unchallenged. He stated that if parents had 
greater control over their child's education they would feel more involved and, as a result, 
their child's education would improve. 

During the question and answer period, the panelists fielded questions from the 
Commissioners dealing with several issues: 

■ The effect of inappropriate placement in special education on student progress 

■ Reasons for a larger percentage of students being placed in special education in lower 
income school districts as compared to middle income districts 

■ The role of behavioral problems as a contributing factor in minority placements in 
special education 

■ The necessity of using the special education label to improve academic performance 

■ The extent to which funding availability influences the effectiveness of local special 
education programs 

■ The effectiveness of Individualized Education Program (IEP) meetings 

■ Special education referral, determination, and evaluation factors 

■ Parental involvement in the special education referral process—compliance versus 
non-compliance 

■ The relationship between family structure, early reading ability, and special education 
placements 

■ The effects of the No Child Left Behind Act of 2001 (NCLBf and the Individuals 
with Disabilities in Education Act (IDEA) 5 6 


5 No Child Left Behind Act of 2001, 20 U.S.C. § 6301 et. seq. 

6 Individuals with Disabilities Education Act. 20 U.S.C. § 1400 et. seq. 






















































Summary of Proceedings 


5 


Summary of Proceedings 


Panel One 

Stephanie Monroe 

Assistant Secretary Stephanie Monroe addressed the disproportionate representation of 
minorities and limited English proficient students in special education. She asserted that 
NCLB was designed to ensure that all students are appropnately assessed and educated 
according to the requirements she viewed as set forth in Brown v. Board of Education , 1 * 3 Lau 
v. Nichols ~ and Title VI of the Civil Rights Act of 1964. The goal of NCLB is to provide all 
students with the basic right to equal educational opportunities. 

Ms. Monroe suggested that the disproportionate representation of minorities in special 
education was a nationwide issue. 4 5 6 * 8 9 noting that minority students constitute a majority of 
students in special education programs. She further stated that there are disparities in the 
implementation of special education between minorities and non-minority students. For 
example, minority special education students are often placed in self-contained classrooms 
while similarly situated non-minority students are educated in regular classrooms.' In 
addition, she stated that over the last ten years, while the number of LEP students has 
increased by 61 percent, the number of LEP students in special education has more than 
doubled. 0 

Monroe stated that to address these disparities. OCR instituted a more rigorous review of 
teacher referral and student assessment standards. Through this commitment. Monroe 
expressed the belief there have been life-changing results." She also stated that special 
education sendees are now assigned more efficiently, in that they are targeting only those 
who legitimately need special education sendees while decreasing the number of 
inappropriate referrals. 4 


Brown v. Board of Education of Topeka. 347 U.S. 483 (1954). 

' Lau v. Nichols. 414 U.S. 563 (1974). 

3 42 U.S.C. § 2000d. 

4 Stephanie Monroe, testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education. Washington. DC. Dec. 3. 2007, transcript, p. 12 (hereafter cited as Monroe Testimony. Briefing 
Transcript). 

5 Monroe Testimony, Briefing Transcript, p. 14. 

6 Ibid., p. 19. 

Ibid., p. 16. 

8 Ibid., p. 19. 

9 Ibid., p. 18. 




6 


Minorities in Special Education 


Martin Gould 

Dr. Martin Gould noted that the problem of minority overrepresentation in special education 
has been consistently well-documented, but not well understood. lu He focused on three of the 
thirteen recognized disabilities in the IDEA: emotional disturbance, mental retardation, and 
learning disability. He considered them subjectively determined categories, which he referred 
to as “judgmental” disabilities. 11 

Dr. Gould identified three racial and ethnic groups that are traditionally overrepresented in 
special education: African American, American Indian/Native Alaskan, and Hispanics. He 
noted that the other two groups—white and Asian American students—are not 
overrepresented. According to Dr. Gould, Asian American students were actually 
underrepresented in special education and overrepresented in gifted and talented programs. 1 " 

Dr. Gould asserted that there are four problems in the proper measurement of 
disproportionality. 1 ' First, he expressed the belief that there is no national consensus on a 
precise definition of measurement, and further, while there are guidelines, there are no 
mandated requirements for the states to follow. Second, he expressed the belief that little 
medical evidence is typically available to confirm or refute an eligibility decision, creating 
variability. Third, he expressed the belief that there is no consistent measurement method, 
creating much difficulty in assessing the extent of the disproportionality. Finally, he stated 
that there is inconsistency of definition among the school districts in terms of determining a 
student's race, including bi-racial students. 14 

Dr. Gould’s recommendation to the Commission was that schools focus on monitoring data 
in various reports, such as a civil rights compliance report, 15 using surveys and/or reports as a 
tool to gather data and for enforcing civil rights laws in education. He also recommended that 
the Commission explore the effectiveness of these methods at the state and local levels. 1 * 1 
Finally, he maintained that without addressing the persistent factors causing 
disproportionality among minorities in special education, the problem will continue to grow. 

Reginald Felton 

Mr. Reginald Felton agreed that minorities were overrepresented in special education in 
public schools compared to their proportions in the general student population. Dispelling the 


10 Martin Gould, testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education, Washington, DC, Dec. 3, 2007, transcript, p. 21 (hereafter cited as Gould Testimony, Briefing 
Transcript). 

11 Gould Testimony, Briefing Transcript, p. 23. 

12 Ibid., p. 23. 

13 Ibid., p. 25. 

14 Ibid., p. 27. 

15 Ibid., p. 28. 

16 Ibid., p. 31. 






Summary of Proceedings 


7 


common claim that these students are improperly placed, however, he suggested that the 
majority of these students do meet the legal definitions for such eligibility. 1 

He stated that students in poverty face greater challenges of many kinds, and that minority 
students are disproportionately in poverty.They may, therefore, disproportionately qualify 
for special education. Furthermore, he suggested that proposing solutions for the 
disproportionality without also addressing these underlying problems would be ineffective. 

He also expressed the view that Congress provides school districts insufficient funds to 
implement effective special education programs. |g 

He noted the addition of two new provisions during IDEA’S most recent reauthorization in 
2004 that provide schools with greater support." The first provision allows school districts to 
set aside funding for student evaluations but does not require students to be formally 
designated as special education students. He felt that this potentially could result in allowing 
teachers to grant needed serv ices to students without the stigma of labeling. He expressed the 
belief that the second new provision could be more beneficial, which relieves local districts 
of the cost of providing certain special education resources to students by shifting the cost of 
non-education resources for special education students from local jurisdictions to statewide 
agencies. 

Mr. Felton further urged that additional studies be undertaken regarding LEP students. He 
recommended that by assessing and identifying LEP students using specific eligibility 7 
standards unique to them, rather than using the broader standards applicable to students with 

i 

disabilities, schools could provide better outcomes." 

Finally, he urged implementation of a program called “universal design learning.” He stated 
that this program would benefit all students—not only those in special education—because of 
its flexible approach both to curriculum and presentation of information. This program 
accommodates the many learning needs and styles by adapting the curriculum to the student 
rather than the student to the curriculum. Lastly, he stated that, while not a panacea, 
incorporating non-traditional methods of presentation of information and assessment 
promises to engage all types of learners. This approach could potentially reduce the 
increasing dropout rates among non-Asian minorities, he suggested."" 


! Reginald Felton, testimony. Briefing before the U.S. Commission on Civil Rights, Minorities in Special 
Education. Washington. DC. Dec. 3. 2007. transcript, p. 32 (hereafter cited as Felton Testimony, Briefing 
Transcript). 

Is Felton Testimony. Briefing Transcript, p. 33. 


19 Ibid., p. 34. 

20 Ibid., p. 35. 


21 Ibid., p. 36. 
2 ~ Ibid., p. 40. 




8 


Minorities in Special Education 


Discussion 

Commissioner Kirsanow asked Mr. Felton whether there were any data that showed how an 
inappropriate placement in special education adversely affected student progress. Mr. Felton 
cited research stating that when students are ineffectively taught for extended periods, the 
disparity in academic perfomiance and advancement between these students and other better- 
placed students can widen by as much as 50 percent." 

Commissioner Braceras observed that in affluent districts, parents often seek to have their 
children placed in special education programs, even if it is inappropriate, because special 
education students are afforded more one-on-one attention in areas of reading, writing, and 
arithmetic. Mr. Felton agreed, but added that in all special education there needs to be 

->4 

appropriate follow-up, assessment of progress, and reevaluation of goals. - 

Vice Chair Themstrom stated that disproportionality alone is not evidence of discriminatory 
placements in special education. She also stated, and Mr. Felton agreed, that often students 
are misplaced in special education because of behavioral problems. Teachers unable to cope 
with such problems may refer problematic students to special education classes rather than 
adjusting their teaching methods. - 

j o c 

Assistant Secretary Monroe agreed with Mr. Felton on this point, and noted that 
inappropriate placements not only do a disservice to the inappropriately placed students, but 
also to the students that need the services but cannot get them due to space limitations. Ms. 
Monroe pointed to OCR-conducted compliance reviews that indicated a 74 percent disparity 
in proportion, which OCR investigated for misplacements. In many of these, the children 
were re-tested and found not to qualify for special education programs. Ms. Monroe noted 

'y s 

that NCLB will generate more accountability, and thus more legitimate placements.“ 

Commenting on Commissioner Braceras's contention that an affluent parent of a disruptive 
child immediately tries to get him or her into special education, Ms. Monroe acknowledged 
that parents understandably use whatever tools are at hand to help their child. She observed, 
however, that such actions may indicate that the parents feel disengaged from the school. She 
argued that if parents are informed of the entire range of services, not just the ones that 
inappropriately drain the school system of funds, there can be a much more effective 
resolution that is specifically tailored to the child. - 

Commissioner Braceras responded by suggesting that certain districts often will not address a 
child's problems unless he is labeled “special ed.“ Accordingly, Commissioner Braceras 
asked if there was any harm with placing students in special education inappropriately if the 


23 Briefing before the U.S. Commission on Civil Rights. Minorities in Special Education. Washington. DC, Dec. 
3, 2007. transcript, p. 43 (hereafter cited as Minorities in Special Education, Briefing Transcript). 

24 Minorities in Special Education. Briefing Transcript, p. 46. 

2:1 Ibid., p. 50. 

" 6 Ibid., p. 51. 

27 Ibid., p. 53. 




Summary of Proceedings 


9 


placements benefit the students. Mr. Felton responded that the broader challenge is to ensure 
that all children get essential education services without the necessity of labeling."' 
Commissioner Melendez asked whether the Department of Education had any position on 
universal screening processes that tested all children at an early age for learning disabilities 
rather than basing placements on teacher recommendations. He further inquired as to whether 
the department was providing research grants or identifying best practices in the area of 
universal screening. Ms. Monroe stated that she did not know, but deferred to the 
department's Office of Special Education Programs." 0 

Mr. Felton responded by reasserting his earlier point that the ultimate goal is to implement 
something that will help the student. He stated that whatever the student evaluation process 
is. appropriate assessment and follow-up is essential to its effectiveness. Dr. Gould also 
responded to Commissioner Melendez's early screening inquiry, stating that early screening 

• • ‘'A 

often is predicated on a school's ability to secure Medicaid resources/' 

Commissioner Yaki asked whether students are placed into programs that are already well- 
funded. or if students are placed in programs specific to their needs regardless of current 
funding/' 1 Mr. Felton suggested that due to insufficient funding, school districts can provide 
very limited support, but that the law mandates that certain sen ices be provided. Thus, to 
secure these sen ices, local districts often need to work with state legislatures." Dr. Gould 
added that he hoped universities would address the increase in the number of students in 
public schools with special needs, such as autism. He stated that universities should include 
special education as part of their curriculums." 

Commissioner Tavlor asked Dr. Gould if there was an overrepresentation of non-Asian 
minorities in those special education categories defined by subjective factors/'^ Dr. Gould 
responded that the research and government reports indicate that they are overrepresented. 
Commissioner Taylor then asked if there was an overrepresentation of non-Asian minorities 
in those special education categories defined by objective factors such as testing. " Dr. Gould 
responded that government reports using OCR data and research reports outside of 
government research do not so indicate. Commissioner Taylor suggested that, when the 
determinations are based solely on objective factors, there is no overrepresentation of 
minorities in special education/'" He then argued that minority overrepresentation and 
misrepresentation in special education are related because of the inherent subjectivity in the 
placement process. Dr. Gould responded that it is hard to draw conclusions because of the 


Ibid., p. 57. 
" Q Ibid., p. 59. 
30 Ibid., p. 60. 
■ ! Ibid., p. 62. 
~ Ibid., p. 63. 
33 Ibid., p. 64. 
54 Ibid., p. 66. 
■' Ibid., p. 66. 
56 Ibid., p. 67. 




10 


Minorities in Special Education 


inevitable variability that results from the different make-up of each IEP committee, which 
he stated is mandated by IDEA/ 

Chairman Reynolds then asked if the subjective decision to take disruptive students out of 
class helped explain misidentification in special education. He also asked whether this 
problem was exacerbated when dealing with children from impoverished homes with little 
support and intellectual stimulation. Those students, he said, are often disengaged from and 
uninterested in the classroom discussion, which results in their becoming disruptive. Mr. 
Felton agreed, stating that there is sufficient research to suggest a relationship between 
poverty, health, and classroom performance. He urged the Commission to determine whether 
the special education evaluation system discriminates against disruptive students or whether 
there are valid reasons for providing the students the additional support services. 38 

Assistant Secretary Monroe disagreed, stating that it is incorrect to generalize the existence 
of a link between poverty and the ability to learn. She pointed out that there are many 
examples of success coming from schools such as the KIPP Academy in which the majority 
of the students are impoverished and, indeed, live in the most dire circumstances. The key to 
such success, she asserted, was a combination of highly qualified, engaged teachers, involved 
parents, and reasonable student-teacher ratios. 39 

Commissioner Heriot asked whether there was disproportionality in special education 
placements in terms of gender and, if so, whether this casts doubt on the racial 
disproportionality in special education. She noted that boys are disproportionately diagnosed 
as requiring special education. Ms. Monroe stated that more gender-based research needs to 
be done to determine the cause of the disproportionality because the tests are currently highly 
subjective. 40 

Commissioner Heriot then asked whether disproportionality in learning disabilities was 
actually an exclusively white, upper-middle class phenomenon. Dr. Gould responded that 
learning disabilities are not overwhelmingly prevalent in majority white schools. Instead, in 
those schools, non-Asian minorities are at a higher risk for being identified with learning 

A 1 

disabilities, specifically math and/or reading disabilities. 

Finally, Vice Chair Themstrom addressed the many outside circumstances that minority 
students often face—poor housing, little at-home support, and lack of high-quality health 
care. The Vice Chair stated that while these problems need to be addressed; they are not 
issues that the school systems can or should address. She stated that a school’s sole objective 
is to provide a high quality education. Mr. Felton agreed, but added that educational services 


Ibid., p. 68. See also 20 U.S.C. § 1400 el. seq. 

■in ... . 

' Minorities in Special Education. Briefing Transcript, pp. 67-68. 

39 Ibid., p. 74. 

40 Ibid., pp. 75-76. 

41 Ibid., p. 78. 




Summary of Proceedings 


11 


need to be provided in an equitable manner, meaning that certain schools will require a 
greater investment than others. * * * 4- 


Panel Two 


Matthew Ladner 

Dr. Matthew Ladner compared the dispanties in minority special education between majority 
white and non-white schools. He cited various works, including a joint study by the 
Progressive Policy Institute and the Thomas B. Fordham Foundation titled “Rethinking 
Special Education for a New Century.” which found that minority students in predominantly 
white schools are placed in special education at much higher rates than minorities in 
predominantly minority schools. Specifically. Dr. Ladner noted an inverse relationship in 
which as a school's minority numbers diminish, minority representation in special education 
increases/' 


Dr. Ladner recommended—per the President's Commission on Excellence in Special 
Education— the elimination of the financial incentives to label students as special 
education."" He also said that the focus should be on early testing and constant, consistent 
academic remediation, rather than continuing the current “wait to fail" approach. Student, 
teacher, and administrator accountability should be increased so a> to limit resources to only 
those who actually need them. He stated further that placement into categories must be 
objectively, not subjectively, determined. Finally, he expressed the \ lew that parents' roles 
should be increased, with more options placed at their disposal/ 


Daniel J. Reschly 

Dr. Dan Reschly first addressed statistics based on IDEA data ' He reported that African 
American students constitute 33 percent of students classified a> mentally retarded who are 
placed in special education, despite the fact that African American students only comprise 
fifteen percent of the general student population, ages six to tw enty-one. At the same time, he 
indicated that the overall percentage of black students classified as mentally retarded was less 
than two percent (1.7 percent) of all African American students attending school." 


4: Ibid., p. 80. 

4? Matthew Ladner, testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education. Washington. DC. Dec. 3. 2007. transcript, p. 86 (hereafter cited as Ladner Testimony. Briefing 
Transcript). 

44 See U.S. Department of Education Office of Special Education and Rehabilitative Services. A New Era: 
Revitalizing Special Education for Children and Their Families. Washington. DC. 2002. 

http: www.ed.gov inits commissionsboards whspecialeducation reports three.html (accessed on Jan. 30. 2009). 
4: Ladner Testimony. Briefing Transcript, p. 89. 

46 See 20 U.S.C. § 1418 (b) and (d). 

4 ‘ Daniel J. Reschly. testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education. Washington. DC. Dec. 3. 2007. transcript, p. 92 (hereafter cited as Reschly Testimony. Briefing 
Transcript). 




12 


Minorities in Special Education 


He stated that these contrasting numbers surprise educators and policy makers because risk 
statistics are often confused with composition statistics. Risk statistics provide the probability 
that a certain student will be classified a certain way within his or her respective group. 
Composition statistics identify the probability that a certain student within a certain 
classification—e.g., mentally retarded—will be of a certain race or ethnicity. He claimed that 
this confusion leads to the unfortunate stereotype that a very large proportion of African 
Americans are in special education. This is not the case, he suggested, as the majority of 
African Americans are in general education. 4S Another statistical calculation that Dr. Reschly 
finds useful is the relative risk ratio, which compares the relative risks of different ethnic or 
racial groups. 

Dr. Reschly also pointed to the problem of stigma associated with special education, which 
stems from certain societal assumptions. One assumption is that special education is a 
distinct and ineffective place—physically separating students—rather than supplying a 
student with a specific set of services. He stated that this assumption is rooted in the 
discrepancy between special education programs in majority-minority schools versus those in 
majority white and Asian schools. Special education in the minority schools will often be a 
distinct learning environment with a separate curriculum that offers few opportunities. In 
majority white and Asian schools, however, special education services more successfully 
meet students’ needs. Dr. Reschly contended that this disparity accounts for the reason 
parents in majority white and majority Asian districts push very hard for their children to 
receive special education services, while parents in majority-minority districts try very hard 
not to have their children placed in special education.' 0 

Dr. Reschly further stated that many errors are made by the IEP committees to the same 
extent regardless of racial and ethnic status, since the subjective nature of much of the 
process makes it subject to many errors/ 1 

He proposed an equitable distribution of educational resources to alleviate minority 
disproportionality in special education. He stated that low income school districts often have 
the least qualified teachers with the least resources at their disposal teaching students with the 
most needs and conversely, the best teachers teaching the students with the least needs. 

In conclusion. Dr. Reschly recommended greater emphasis on prevention of incorrect 
referrals through teaching reading effectively; and greater rigor in evaluation and 
improvement of special education. ' 


4 0 . . 

Reschly Testimony, Briefing Transcript, p. 93. 
49 Ibid., p. 95. 




Summary of Proceedings 


13 


Hilary Shelton 

Mr. Hilary Shelton argued that the disproportionate number of minorities in special education 
is the result of the use of inappropriate criteria. He maintained that the traditional practice of 
using special education as a means to segregate minority students from the class at large, in 
some instances, still continues. He offered another explanation for the disproportion—a high 
frequency of behavioral difficulties coupled with poor classroom management that is 
common in lower income, minority schools. These behavioral problems often lead to special 
education referrals and placements, he contended. He questioned the validity of standardized 
tests used to make placement decisions, based on his view that students with different life 
experiences can't be adequately tested using such standards. His view is that these 
assessments fail to account for student diversity of experiences, and are therefore 
inappropriate and inaccurate/'' 

Mr. Shelton stated that once a student is placed in special education, it is very difficult for 
him her to be reclassified in general education. Further, students who are inappropriately 
placed receive ineffective education that is continually reinforced if they are not removed 
from special education. Therefore, students often graduate without even minimal proficiency 
and. in some cases, are led to believe this minimal level is sufficient. The result, he stated, is 
that these students have few prospects even for menial, low-income jobs. ~ 

Mr. Shelton suggested that there be general accountability 7 in special education to reduce the 
disproportion and that there be an increase in local and federal oversight wherever there are 
substantial disparities. Additionally, he expressed the belief that parents and students should 
have the right to seek judicial review of complaints specific to racial disproportionality.' ' 

Peter Zamora 

Mr. Peter Zamora addressed the misclassification of ELLs in special education. He noted that 
ELLs are the fastest growing subgroup of students in U.S. public schools, increasing ten 
percent annually. He countered the common assumption that the majority of ELLs are 
foreign-bom. citing studies that show that native-born ELLs make up 76 and 56 percent of 
elementary and secondary school populations respectively. Further, he noted that over half of 
the ELLs in secondary schools are second- and third-generation citizens.' 6 

He suggested that misclassification of ELLs into special education is a significant problem. 
Mr. Zamora argued that statistics show that in the 2001-02 school year, up to three-fourths of 
ELL special education students were improperly placed. He stated that while research 
showed varying results between states and districts, generally, it appeared that ELLs are 


53 Hilary Shelton, testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education. Washington. DC. Dec. 3. 2007. transcript, p. 105 (hereafter cited as Shelton Testimony. Briefing 
Transcript). 

' 4 Shelton Testimony. Briefing Transcript, p. 107. 

55 Ibid., 108. 

56 Peter Zamora, testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education. Washington. DC. Dec. 3, 2007, transcript, p. 110 (hereafter cited as Zamora Testimony. Briefing 
Transcript). 




14 


Minorities in Special Education 


more likely to be placed in special education in districts that serve a smaller number of such 
students. He suggested a possible reason for this is that school districts with fewer ELLs may 
be less able to distinguish between low achievement due to language difficulty versus a 
learning disability. Moreover, he expressed the belief that the primary reason for the 
misclassification of ELLs is that teachers often lack sufficient training in both special 
education and English language acquisition that would allow them to distinguish between the 
two. 57 

Mr. Zamora suggested that continuing teacher education as well as a pre-referral process 
should be implemented to improve ELL services. He also suggested that the state and federal 
government should be supportive of programs that encourage teachers and prospective 
teachers to develop expertise in English language development. This would increase the 
likelihood that students would not be inappropriately placed in special education. 

In terms of the pre-referral processes, he suggested that school-created “teacher assistance 
teams” should be implemented. These teams would consist of classroom teachers who would 
examine whether underperforming students were receiving high quality instruction. The team 
would meet to discuss the evaluation process and develop action plans to correct apparent 
problems. As this process should precede student involvement in special education, its 
primary benefit would be to identify non-disability-related causes of academic 
underperformance, thereby reducing inappropriate placement of ELLs in special education. 

Lastly, in addition to the “teacher assistance teams,” he recommended that school staff 
conduct early screening of all students to determine which students need closer monitoring or 
intervention. The objective of these programs would be to identifv students with, or at risk 

SR 

for, learning disabilities early in their education.' 

William Hurd 

Mr. William Hurd began by describing the way the special education system works in 
practice. He stated that, in theory, the parents and the school system are supposed to work as 
equal partners in creating an IEP for the student; however, he suggested that this is often not 
the case. Typically, the school controls the process while the parents are passive participants. 
Nevertheless, this partnership is supposed to decide, through consensus, how the sendees 
should be administered. If there is a disagreement between the parents and the school system 
during this process, the law provides the parents the right to a neutral due process hearing 
where they can challenge the school's placement on grounds that it is inappropriate, and 
propose an appropriate alternative. 

Mr. Hurd asserted that, in practice, the problems resulting from this process become apparent 
when comparing special education programs in lower income schools from those in wealthier 


■ 7 Zamora Testimony, Briefing Transcript, p. 112. 

58 Ibid., p. 114. 

59 William Hurd, testimony. Briefing before the U.S. Commission on Civil Rights. Minorities in Special 
Education, Washington, DC, Dec. 3, 2007, transcript, p. 118 (hereafter cited as Hurd Testimony, Briefing 
Transcript). 




Summary of Proceedings 


15 


districts. The due process hearings are often costly because even if the parents win. they are 
only reimbursed for their attorney's fees, not for their expert witness fees. These costs often 
deter parents in lower socio-economic classes from challenging their child's special 
education placement. Further, because a disproportionate number of blacks and Hispanics 
belong to lower socio-economic classes, this deterrent effect disproportionately affects them. 
Mr. Hurd stated that a study by the General Accounting Office (GAO) that looked at 
household income and number of hearing requests in the year 2003 substantiates this claim. 
The GAO study reported that there was a significant positive correlation between household 
income and frequency of hearing requests, and concluded that households with lower income 
are far less likely to seek due process hearings than households with higher income. 0 " 

Mr. Hurd described the forces that contribute to inappropriate identification of low-income 
students, including budgetary constraints brought about by inadequate federal funding that, 
although initially set at 40 percent of special education costs, is now down to about 18 
percent. Such budgetary constraints provide a considerable incentive for school officials to 
assess in an initial IEP meeting how compliant parents will be in the special education 
process. The end result, he suggested, is that districts offer more compliant parents fewer 
special education services, and if compliant parents are disproportionately minority, may 
reflect “reflexive racial stereotyping." M and unintentionally disparate treatment. 

Mr. Hurd recommended that the Commission look into statistics to compare the numbers of 
due process hearings sought by minorities to the number of minorities in special education. 
He also suggested that the Commission do a detailed regression analysis to determine the 
amount of minority disproportionality that is race-related and how much is socio¬ 
economically related. 

Finally, he expressed the belief that for special education to work the way it should, parents 
must assert themselves and become involved in the process, advocating for their children. He 
expressed the belief that by including more parents in the process, special education would 
become more effective overall. 

Discussion 

Commissioner Kirsanow opened the discussion by asking Dr. Ladner whether he was able to 
find any data demonstrating that a greater proportion of minority students are assigned to 
special education classes in majority white school districts. He also asked Dr. Ladner 
whether there were any data that substantiated Mr. Hurd's point that in the initial IEP 
meetings, minority parents are more compliant.^' 

Dr. Ladner responded that the data substantiated the view that minority students in suburban 
districts are more likely to be labeled as special education than minority students in inner- 
cities with larger proportions of minority students. He then recommended that the 


Hurd Testimony. Briefing Transcript, p. 120. 

61 Ibid., p. 124. 

61 Minorities in Special Education. Briefing Transcript, pp. 125-26. 




16 


Minorities in Special Education 


Commission review a study entitled the “McKay Scholarship Program"''' in Florida for 
possible solutions to these inequities. He stated that this program allows the parents to 
receive money that would otherwise be used for their child's special education and use it in 
another public or private school as they see fit. Mr. Ladner pointed to a Manhattan Institute 
study by Jay Greene.' 4 which he characterized as finding that the parents of the 18.000 
students who participated in this program were satisfied because this program provided them 
with some responsibility for and leverage over their children's education.'" 

Commissioner Kirsanow then asked the panel whether they had an opinion as to how much 
students’ reading abilities factor in to their placement in special education programs as 
compared to disincentives built into a due process hearing. Dr. Reschly responded that 
reading ability is either the first or second reason for the placement 80 percent of the time. He 
added that the data support the correlation between fewer behavioral problems and increased 
reading skills. 

Dr. Ladner stated that, while reading ability often determines a child's special education 
placement, students' inability to read proficiently is often the result of inadequate schools and 
teaching. He suggested that the solution is to place significant emphasis on a high quality 
reading education in the early grades, particularly before fourth grade. Minority students in 
urban minority schools often begin their education with fewer reading skills than their 
suburban counterparts; therefore. Dr. Ladner recommended that there be a much greater 
emphasis on early reading education. If students who do not read proficiently are 
nevertheless promoted each year, their difficulties are compounded yearly and often result in 
inappropriate placements in special education. He stated that this is especially problematic 
because it reduces places for students that truly need these serv ices.' '' 

Commissioner Kirsanow then asked to what extent family structure contributes to student 
difficulty. Dr. Ladner agreed that family structure is highly influential in students’ overall 
performance in school. Mr. Zamora stated that the problem is that Spanish-speaking ELLs 
are often less likely to have books in their homes, or live in homes where they are 
encouraged to read. Thus, these students are often unable to read in their native language, so 
that when they take tests in their native language. Mr. Zamora continued, the tests are often 
inaccurate measurements of their ability/ 

Vice Chair Themstrom asked Dr. Ladner why these children were not learning to read by 
third grade and specifically whether the misguided use of whole language reading instruction 
was, in part, responsible. She stated that if we impugn the entire education system it becomes 
too complicated to address in any meaningful way. Dr. Ladner disagreed, asserting that 


See Florida Dept, of Education. Office of Independent Education & Parental Choice. McKay Scholarship 
Program. http://www.floridaschoolchoice.org/Inforrnation/McKay (accessed Jan. 30, 2009). 

M See Jay P. Greene. Marcus A. Winters, “The Effect of Special Education Vouchers on Public School 
Achievement: Evidence From Florida's McKay Scholarship Program," Manhattan Institute for Policy 
Research. Civic Report. No. 52, April 2008, http://www.manhattan-institute.org/html/cr 52.htm (accessed Jan. 
30, 2009). 

Minorities in Special Education. Briefing Transcript, p. 128. 

66 Ibid., pp. 131-32. 

67 Ibid., p. 132. 




Summary of Proceedings 


17 


overall teacher quality heavily influences early student literacy. He suggested that if students 
had the power to choose where they were taught, there would be significantly fewer 
problems. He also argued that schools should develop an increased capacity to remediate 
these problems. 

Vice Chair Themstrom expressed the concern that the fiscal impact of providing special 
education was not a trivial concern for school districts. Mr. Hurd agreed, stating that special 
education would improve dramatically if its funding increased. Another problem. Mr. Hurd 
suggested, was that members of the IEP committee have often been instructed by the 
principal prior to the meeting to put forth certain recommendations even if they are not the 
most appropriate for the child. Mr. Hurd stated that the two factors motivating a school 
system are money and the convenience or freedom of their staff to adapt the evaluation plan 
to teachers’ own time constraints.^' 

Chairman Revnolds asked Dr. Ladner whether reconfiguring the school system to ensure that 
the most qualified teachers are assigned to the students facing the biggest challenges would 
entail a different approach to the collective bargaining agreement. Dr. Ladner responded that 
it would, but further argued that merit pay would provide incentives for better teachers to 
teach in less desirable districts. He stated that this would create incentives for hard work and 
creativity and help maintain a high-quality teacher presence, rather than the current high rate 
of turnover that is particularly apparent in the neediest schools. He cited research ^ by Dr. 
William L. Sanders 0 which indicated that the influence of teacher quality is twenty times 
larger than that of the impact of class size on students' academic performance. 

Chairman Reynolds questioned whether there were effective research-based assessment tools 
for assessing teacher quality. Dr. Ladner said there were not. nor would that be desirable. He 
suggested that there should be an intra-district accessible online database of teaching 
methods, which would make it easy for administrators to compare teachers in the district. He 
also suggested that other teachers could use this as a learning tool to improve their own 
methods. " 

Commissioner Kirsanow asked Mr. Hurd how the special education hearings process could 
be made more accessible to low-income parents and whether there should be such a process. 
Mr. Hurd responded that there is a need for such a process to ensure that parents have a role, 
but that assistance from entities such as Legal Sendees in Virginia could reduce the cost of 


68 Ibid., p. 136. 

6U See William L. Sanders, June C. Rivers. Research Progress Report: “Cumulative and Residual Effects of 
Teachers on Future Student Academic Achiev ement.” University of Tennessee Value-Added Research and 
Assessment Center. November 1996. 

www.mccsc.edu -curriculum cumulative 0 o20and%20residual°o20effects°o20ofo20teachers.pdf {accessed Jan. 
30. 2009). 

"° Dr. Sanders is a senior research fellow in the University of North Carolina System, and a senior manager of 
value-added assessment and research for the SAS Institute Inc. in Cary. NC. See 
http: vwvvv.sas.com govedu/edubio_sanders.html (accessed Apr. 14. 2009). 

’’ Minorities in Special Education. Briefing Transcript, p. 141. 

72 Ibid., p. 143. 




18 


Minorities in Special Education 


the appeals process. Mr. Shelton agreed that utilizing entities such as Legal Services or 
something at the federal level such as the Legal Services Corporation would be helpful if 
they developed expertise in special education. 

Commissioner Kirsanow asked Mr. Shelton if he knew of any longitudinal studies that 
demonstrate any adverse impact on students placed in special education vis-a-vis similarly 
situated students not placed in special education. Mr. Shelton was not aware of any such 
studies, but offered anecdotal experience of the stigma attached to special education 
programs. 74 

Dr. Reschly commented that the outcomes for students arriving at fifth or sixth grade with 
low reading skills and associated behavior problems were generally not positive. He offered, 
however, that there were positive special education outcomes associated with high school 
work preparation programs. He added that vocational education did not, by contrast, show 
advantages and achievement at the K-12 level as a result of special education placement. 
However, he stated that more than 95 percent of all parents of students in special education 
view the programs favorably, and that this hearing was focusing on the extremes rather than 
the middle, where tens of thousands of educators do a really good job. 

Vice Chair Themstrom drew attention to pressure from advocacy groups, and Dr. Reschly 
agreed that such pressure was a factor in persuading school systems to provide services. Dr. 
Reschly posited that such advocacy groups also pressure local school boards into advancing 
their special education programs, whereas schools tend to ignore average parents. 
Commissioner Braceras agreed that advocacy groups often cannot advance specific parents’ 
needs. 75 

Commissioner Kirsanow asked the panelists that if income is controlled, then would school 
districts, schools, and boards of education view members of some races as more compliant in 
the special education placement and hearing process than others. 

Dr. Ladner suggested that reviewing subjective special education placements for 
discrimination or other inappropriate or illegal factors, poses the most difficulty, since 
determining motivation is beyond the reach of social science. According to Dr. Ladner, half 
the students in special education are labeled as having a Specific Learning Disability (SLD) 
while research shows that 30 percent objectively fit that neurological category. Further, black 
and Hispanic students are often more likely to be classified as SLD than their Asian and 
white counterparts. To correct this misclassification, he suggested that SLD be moved from a 
subjective to a medically diagnosed category. 76 

Commissioner Kirsanow asked if there were any data showing that, in majority white school 
districts, African American students are more likely to be placed in special education courses 




Summary of Proceedings 


19 


than Hispanic. Native American, or Asian students. Dr. Ladner responded that the proportion 
of Asian students in special education is flat and low across the board, and that the 
proportions for African Americans. Hispanics. and Native Americans are higher. 
Commissioner Kirsanow asked if there was any research available examining this disparity, 
and Dr. Reschly responded that there is little interest in funding this kind of research. 

Commissioner Kirsanow then asked Mr. Zamora if he had any data showing a difference in 
special education placement rates between Spanish-speaking ELL students and ELL students 
speaking another language. Mr. Zamora replied that the data on the correlation between 
special education and ELL were very limited. However, he indicated that the most 
authoritative report was submitted to the Department of Education in 2003. He added that, 
based on his work with the Asian American Justice Center. Asian students seem to face the 
“model minority" stereotype. 

Commissioner Kirsanow asked Mr. Hurd whether he had encountered a greater percentage of 
Asian parents utilizing the special education due process system compared to parents of other 
ethnic backgrounds. Mr. Hurd answered that, in his practice, he had dealt almost exclusively 
with white parents and some African American parents. Commissioner Braceras added that, 
in her experience, the white parents were more likely to be seeking a special education 

-TO 

placement for their child to obtain additional sendees. 

Commissioner Yaki asked Dr. Ladner what effect NCLB has had on the number of special 
education referrals in the last four years. Dr. Ladner stated that generally NCLB has been 
positive because it mitigated the perverse incentive of labeling students so as to exempt them 
from state testing. Mr. Zamora concurred in general with Dr. Ladner's statement, and said 
that NCLB has increased transparency and accountability with respect to ELL students. 

Commissioner Melendez concluded by asking how the Commission could address these 
issues as IDEA nears expiration in 2010. Dr. Reschly answered that increasing accountability 
is crucial and that special education must be a set of sendees rather than a holding place. Mr. 
Zamora concluded by stating that in IDEA'S reauthorization in 2004. language was added, in 
his view, to limit misclassification resulting from poor language skills, but he thought that the 
provision has not yet been satisfactorily implemented. 


Ibid., pp. 157-58. 
78 Ibid., p. 158. 

9 Ibid., p. 159. 

80 Ibid., p. 160. 










































































. 
















Statements 


21 


Statements 


[Note: Statements are unedited.] 


Stephanie Monroe: “Minorities and Limited English Proficient Students 
in Special Education” 

Introduction 

Good morning. I am happy to represent the U.S. Department of Education. Office for Civil 
Rights at this briefing to discuss two civil rights issues that have been a priority for my 
agency since 1993: the disproportionate representation of minorities and limited English 
proficient students in special education. It is clear that greater understanding of these issues 
will better enable school districts to serve students more effectively in both the regular 
education program and in special education programs where appropriate placement decisions 
have been made. 

The Xo Child Left Behind Act of 2001 was designed to ensure that all students are 
appropriately assessed: included in the accountability system; and prepared to attain grade- 
level proficiency in reading and math. While giving states the flexibility to use the best 
methods of instruction. Xo Child Left Behind requires that states and local education agencies 
establish English proficiency standards and carry out language instruction programs that are 
based on scientific research and implemented by highly qualified and effective teachers. The 
goal being to advance equal access and opportunity for all students as required by the Brown 
and Lau decisions and Title VI of the Civil Rights Act of1964. 

More than fifty years ago. the U.S. Supreme Court ruled in its monumental decision in 
Brown v. Board of Education : "Segregation of children in public schools solely on the basis 
of race deprives children of the minority' group of equal educational opportunities... [In] the 
field of public education, the doctrine of “separate but equalhas no place." More than 
fom- years ago. Congress enacted Title VI, prohibiting discrimination on the basis of race, 
color or national origin that included discrimination on the basis of limited-English 
proficiency by recipients of federal financial assistance. In the landmark Lau v. Xicho/s 
decision over 30 years ago. a unanimous Supreme Court held “ There is no equality' of 
treatment merely by providing the same facilities, textbooks, teachers and curriculum—for 
students who do not understand English are effectively foreclosed from any meaningful 
instruction. ” Through these major legal developments. Congress and the courts have 
established that all students have a basic right to equal educational opportunities. 

The .Minorities and Special Education (MinSpEd) Issue 
Background 

In 1982. the Office for Civil Rights commissioned a study by the National Academy of 
Sciences, which resulted in a report entitled Placing Children in Special Education: A 
Strategy for Equity . This study provided a number of important insights into the issue of 





22 


Minorities in Special Education 


disproportionate representation of minorities in special education, including 1) the linkages 
between effective instruction and placement in special education programs; 2) the uses and 
misuses of testing and assessment for special education services; and 3) other, generally 
external factors which affect whether a child would be labeled mentally retarded. 

Later, in 1992, nationwide survey was conducted to determine if minority students were 
disproportionately placed in special education programs; and, whether any patterns existed 
with regard to the disproportionate placement; 3500 schools were surveyed. The results 
indicated that the disproportionate placement of minority students in special education was a 
nationwide issue. The report showed that nationwide in 1992, African-American students 
accounted for 16 % of the total student population, yet African-American students accounted 
for 32 % of the students in programs for the mildly mentally retarded, 30 % of the students in 
programs for the moderately mentally retarded, and 22 % of the students in programs for the 
seriously emotional or behavior disordered. In some instances, disparities of up to 74 % were 
found. These disparities were most prevalent in the Southeast. Sadly, those disparities have 
not changed significantly to date; OCR’s data from more recent surveys reveal nearly 
identical disparities in these categories. 

The NAS concluded that while federal regulations implementing the Individuals with 
Disabilities Act define mental retardation, the translation of these guidelines into assessment 
practices is neither direct nor uniform. Thus, the category of EMR is operationalized in 
different ways, at different times and in different areas. Furthermore, despite the mandates of 
federal law and regulations, imprecision and looseness in the referral, assessment and 
placement systems can lead to personal bias affecting placement decisions. 

In the summer of 1993, OCR held a national conference in Washington to discuss this issue. 
Those in attendance included parents, psychologists, special education school personnel, 
advocacy groups, and others. Those in attendance provided various reasons for the 
disproportionate placement of minority students in special education, including 1) economic 
reasons; 2) bias of referring teachers; 3) culture; 4) bias of evaluation instruments; 5) bias of 
evaluators; and, 6) lack of resources. 

Following this conference in 1993, OCR initiated its proactive compliance activities 
regarding the MinSpEd issue in the same year. Since 1993, OCR has conducted hundreds of 
compliance reviews in this area. In 2003, OCR launched another major compliance initiative 
regarding the MinSpEd issue. In the past five years, OCR has conducted 61 MinSpEd 
compliance reviews and received an additional 144 complaints regarding the MinSpEd issue. 

Throughout the past 14 years, OCR has consistently identified the following compliance 
concerns; 

■ Teachers referring minority students for special education testing, but not referring 
similarly situated white students. 

■ Evaluators using different types of tests, more testing, or different interpretations of 
test results to determine that minority students need special education services. 



Statements 


23 


■ Schools placing minority special education students in self-contained classrooms, 
while similarly situated white students are placed in regular classrooms. 

■ Delays in evaluating and placing students that affect children of all races and national 
origins. 

OCR has addressed these concerns by investigating the practices and policies of school 
districts and obtaining voluntary resolution agreements. Some of the key components of 
those agreements include: 

■ Requiring training of regular education teachers on appropriate reasons for referring 
students for special education testing. 

■ Requiring review of evaluation instruments, and of how eligibility decisions are made 
after testing is completed. 

■ 'Requiring re-evaluation of students affected by discriminatory practices. 

A study conducted by OCR in 1998. on the impact of the first tier of the compliance reviews, 
revealed that in 76 % of the reviews in monitoring for three or more years, there was a 
decrease in the number of minonties referred and/or placed in special education. This success 
is ongoing on a case-by case basis as OCR continues its proactive efforts in this area. In 
addition. OCR has worked with numerous state education agencies on employing strategies 
to address the inappropriate placement of students in special education. 

Results for Real Students 

OCR's proactive work in this area has yielded life-changing result for real students. Our 
goal is to ensure that schools provide access to more effective educational opportunities for 
all students so that students who legitimately need special education sendees can in fact 
receive those sendees. Those students who have been inappropriately referred for sendees 
must then be provided an opportunity to participate in the regular education curriculum and 
in many instances, an opportunity to participate in high-level academic programs as well. In 
one particular case that was recently closed. OCR closely monitored the implementation of 
the resolution agreement that called for the district to completely overhaul its practices to 
ensure that students were appropriately referred, evaluated and placed in special education 
programs. For example, the district re-evaluated 61 Educable Mentally Disabled (EMD) 
students and of those, only 23 students continued in the EMD classification; 16 were 
reclassified in a different disability category to better sen e their needs, and 22 were 
determined not to have a disability at all and. thus, not to need any special education sendees. 
The district also is providing transition sendees to those 22 students now in the general 
education program to ensure that they have the resources they need in order to succeed. It is 
important to note that when OCR initiated this review in 2004. there were a total of 242 
EMD students compared to 150 in the 2006—07 academic years. There were 100 African- 
American students identified as EMD in the 2006-07 academic year compared to 176 when 
OCR initiated its compliance review in the 2004-05 academic year. 

Along with our focus on the issue of minorities in special education. OCR has also focused 
on the issue of access by minority students to gifted and talented programs. In one major 
urban school district, as a result of OCR's review, the district created gifted and talented 
programs in traditionally underserved communities, enrichment programs and multi-source 



24 


Minorities in Special Education 


notices to parents in each community, implemented a new multiple-criteria test to assess 
student eligibility for the programs, and established training to provide professional 
development for teachers in those programs. 

An equally important issue for the Office for Civil Rights is the treatment and placement of 
children with limited English proficiency in special education programs. 

The Limited English Proficient Student and Special Education (SpEdLEP) Issue 

Background 

Throughout the years, the Department of Education has worked to clarify the responsibilities 
of recipients towards national origin minority, limited English proficient (LEP) students. 

■ In May 1970, the Department issued a policy memorandum, entitled “Identification 
of Discrimination and Denial of Sendees on the Basis of National Origin” (35 Federal 
Register 1 1,595) (May 1970 Memo) and affirmed in Lent v. Nichols , clarifying the 
Department’s policy under Title VI on issues concerning the responsibility of school 
districts to provide equal educational opportunity to LEP students. The policy 
memorandum states in part that school districts must take affirmative steps to remedy 
language banders, and may not assign students to special education services on the 
basis of criteria that essentially measure and evaluate English language skills. 

■ In 1991, OCR supplemented this policy by a memorandum providing that school 
districts must 1) identify which of its national origin minority students have limited 
English proficiency; 2) provide them with an effective language assistance program 
that affords them meaningful access to the district’s educational services; 3) ensure 
that students are not exited from the program until it is objectively determined that 
they can speak, read, write and comprehend English sufficiently to participate 
meaningfully in the district's educational services; and 4) modify the program for 
LEP students when that program is not working. 

Key Findings of SpEdLEP Compliance Reviews 

Over the last ten years, while the number of LEP students has increased by 61% from 2.6 
million to 4.2 million, the number of LEP students in special education has more than 
doubled, from 120,000 to 248,000. In the past five years, OCR has conducted 35 SpEdLEP 
compliance reviews and received an additional 273 complaints regarding the SpEdLEP issue. 
Our reviews over the last 14 years, have consistently identified the following compliance 
concerns: 

■ Lack of consistent affirmative steps to address language barriers 

■ Referrals for special education testing that did not take the LEP student’s language 
and culture into account 

■ Special education eligibility decisions were based on a student's limited English 
proficiency 

■ Lack of meaningful communication with parents 



Statements 


25 


Similar to the MinSpEd compliance reviews, OCR has addressed these concerns by obtaining 
voluntary resolution agreements from school districts to address these areas. Also, it is 
important to note, that when OCR conducts these reviews to examine whether appropriate 
sendees are being provided to LEP students. OCR also looks at whether LEP students are 
being provided the opportunity to participate in high-level academic programs such as gifted 
and talented programs. In the majority of cases where OCR investigates access by LEP 
students to gifted and talented programs. OCR's finds compliance issues and is able to secure 
remedies that promote high academic achievement for all students. 

Results for Real Students 

OCR's proactive work in this area has also yielded life-changing results for real students. For 
example. OCR recently closed the monitoring of one case where, as a result of OCR's work 
with the district, the district instituted alternative language programs in 10 additional schools, 
trained school staff members and administrators through various training initiatives, and 
moved 26 students - nearly half of the LEP students that had been receiving special 
education services, out of special education because it determined that they had been 
inappropriately placed in special education, that is, based solely on their lack of English 
skills. In a similar case, involving a district in a different state, about 40 LEP students were 
taken out of special education after the district's procedures to ensure that LEP students are 
not placed in special education on the basis of language were correctly followed. 
Additionally, that district saw a considerable increase in the number of LEP students 
participating in gifted and talented programs and the graduation rate of formerly LEP 
students increased to an all time high of 80 %. 

Conclusion 

Brown v. Board of Education is a lesson that we must not rest until all children, regardless of 
their race or ethnicity, regardless of their mastery of the English language, regardless to the 
presence of a disability, have access and an opportunity to benefit from a high-quality 
education. Only by eliminating all of the vestiges of discrimination, regardless of their form 
or origin, can we fully ensure that every student has an opportunity to succeed. By focusing 
on this issue, our hope is that recipients will re-evaluate their policies and practices in this 
area, increase compliance with these requirements, and improve access to educational 
benefits and services for all students. 



26 


Minorities in Special Education 


Martin Gould: National Council on Disability Written Remarks 

The National Council on Disability (NCD) would like to thank the U.S. Commission on Civil 
Rights (USCCR) for this opportunity to provide remarks in support of this public briefing on 
the possible misplacement of culturally diverse and limited English proficient students in 
special education. 

NCD is an independent federal agency, composed of 15 members appointed by the President 
and confirmed by the Senate. NCD’s purpose is to promote policies and practices that 
guarantee equal opportunity for all individuals with disabilities, regardless of the nature or 
severity of the disability, and to empower individuals with disabilities to achieve economic 
self-sufficiency, independent living, and integration into all aspects of society. 

Introduction 

Disproportionately in special education programs in the United States has been among the 
most critical and enduring problems in the field of special education for many years. 1 2 * 4 
Although the presence of overrepresentation has been consistently documented, it is fair to 
say that the full complexity of the problem has not yet been understood, nor has a clear 
picture emerged at the national level concerning the causes of disproportionality." 

There is a diversity of viewpoints about how to measure disproportionality.' as well as a 
sense that traditional approaches to documenting disproportionality through civil rights data 
collection can and must be improved. And while research has shown that reducing 
disproportionality requires a comprehensive approach (e.g., that includes teacher training, 
culturally appropriate assessment and instruction, home and school collaboration, and an 
effective pre-referral process), there is a poor evidence base of documented community 
solutions. 

IDEA Data and Measurement 

To address the issue of disproportionate placement of diverse students, the 1997 
reauthorization of the Individuals with Disabilities Education Act (IDEA) stressed the 
importance of efforts to “prevent the intensification of problems connected with mislabeling 
and high dropout rates among diverse children with disabilities.” The 1997 amendments to 
IDEA (P.L. 105-17) also added the requirement that states collect data for the purposes of 


1 National Council on Disability 1993 report. Sewing the Nation s Students with Disabilities: Progress and 
Prospects ; U.S. Commission on Civil Rights 2002 briefing report. Making a Good IDEA Better: The 
Reauthorization of the Individuals with Disabilities Education Act; (c) National Academies'—National 
Research Council 2002 report. Minority Students in Gifted and Special Education; (d) Congressional Findings 
in the 1997 reauthorization of P.L. 105-17, the Individuals with Disabilities Education Act (IDEA) which 
states, “Greater efforts are needed to prevent the intensification of problems connected with mislabeling and 
high dropout rates among minority children with disabilities.” 

2 National Research Council (2002). Minority' Students in Gifted and Special Education 

Coutinho, M.J. and Oswald, D.P. (2006). Disproportionate Representation of Culturally and Linguistically 
Diverse Students in Special Education: Measuring the Problem. NCCREST. 

4 Hawley. W.D. and Ready, T. (2003). Measuring Access to Learning Opportunities. National Academy of 
Sciences. 





Statements 


27 


monitoring and reducing disproportionality. Congress found the need to be particularly 
urgent because the number of children from diverse backgrounds in the nation's schools was 
increasing steadily. 

To meet this IDEA mandate, the U.S. Department of Education uses 20 monitoring priorities 
and indicators for its Part B State Performance Plan (SPP) and .Annual Performance Report 
(APR) reporting system. .An October 200” report on Characteristics of States ' Monitoring 
and Improvement Practices based on practices in 2004-05. asked state respondents questions 
including: a) In 2004-05. on what compliance performance areas did states focus their 
monitoring efforts?; and b) Did these focus areas include the priority areas identified by 
IDEA 2004? Some of the priority’ areas mandated by IDEA 2004 were identified by fewer 
than 27 states. Twenty-six states indicated they focused on the disproportionate 
representation of racial ethnic groups in special education. How the remaining states and 
territories are managing their monitoring responsibilities under IDEA 2004 should be of 
interest to the USCCR. 

The following information in tabular and graphic form is from the most recent 27th Annual 
Report to Congress on the implementation of the IDEA (2007). These national level data 
represent a small portion of the required data from States for the purposes of monitoring and 
reducing proportionality. 



28 


Minorities in Special Education 


Are students from different racial/ethnic groups receiving special education and related 
services for similar disabilities? 


Table 1 

Disability distribution, by race/ethnicity, of students ages 6 through 21 receiving special 
education and related services (Fall 2003) 


Disability 

American Indian/ 
Alaska Native 

Asian/ 

Pacific 

Islander 

African 

American 

Hispanic 

White 

(not 

Hispanic) 


Percent 

Specific learning disabilities 

54.5 

39.5 

44.9 

57.3 

45.6 

Speech/language impairments 

16.0 

26.0 

14.3 

18.3 

20.1 

Mental retardation 

7.5 

8.9 

16.1 

8.1 

7.9 

Emotional disturbance 

8.0 

4.6 

11.2 

4.9 

7.9 

Multiple disabilities 

2.0 

2.7 

2.2 

1.9 

2.3 

Hearing impairments 

1.0 

2.8 

1.0 

1.5 

1.1 

Orthopedic impairments 

0.7 

1.7 

0.8 

1.2 

1.2 

Other health impairments 

5.7 

5.3 

5.9 

4.1 

9.1 

Visual impairments 

0.4 

0.8 

0.4 

0.5 

0.4 

Autism 

1.1 

5.7 

1.8 

1.5 

2.7 

Deaf-blindness 

0.0 

0.1 

0.0 

0.0 

0.0 

Traumatic brain injury 

0.4 

0.4 

0.3 

0.3 

0.4 

Developmental delay 

2.6 

1.4 

1.2 

0.6 

1.2 

All disabilities 

100.0 

100.0 

100.0 

100.0 

100.0 


In 2003, for all racial/ethnic groups, the largest disability category was specific learning 
disabilities. 

Specific learning disabilities, speech or language impairments, mental retardation and other 
health impairments were among the five largest disability categories for all racial/ethnic 
groups. Emotional disturbance was also among the five largest disabilities for all 
racial/ethnic groups except Asian/Pacific Islander. Autism appeared in the top 5 disability 
categories only for the Asian/Pacific Islander racial/ethnic group. 

For each racial/ethnic group, how does the proportion of students receiving special 
education and related services compare to the proportion of all other students combined? 

Risk ratios compare the proportion of a particular racial/ethnic group served under Part B to 
the proportion so served among the other racial/ethnic groups combined. For example, in the 
table below, the risk ratio of 3.0 for African American students with mental retardation 
indicates that African American students are three times as likely to receive services for 
mental retardation under IDEA Part B as are their age peers from the other racial/ethnic 
groups combined. 




























Statements 


29 


Table 2 

Risk ratios for students ages 6 through 21 receiving special education and related services, by 
race/ethnicity and disability category (Fall 2003) 


Disability 

American 

Indian/Alaska 

Native 

Asian/ 

Pacific 

Islander 

African 

American 

(not 

Hispanic) 

Hispanic 

White 

(not 

Hispanic) 

Specific learning disabilities 

1.8 

0.4 

1.4 

1.1 

0.8 

Speech/language impairments 

1.3 

0.7 

i.i 

0.9 

1.1 

Mental retardation 

1.2 

0.5 

3.0 

0.7 

0.6 

Emotional disturbance 

1.5 

0.3 

2.3 

0.5 

0.8 

Multiple disabilities 

1.4 

0.6 

1.4 

0.7 

1.0 

Hearing impairments 

1.3 

1.2 

1.1 

1.2 

0.8 

Orthopedic impairments 

0.9 

0.8 

1.0 

1.0 

1.1 

Other health impairments 

1.2 

0.4 

1.1 

0.4 

1.6 

Visual impairments 

1.3 

1.0 

1.2 

0.9 

0.9 

Autism 

0.7 

1.2 

1.1 

0.5 

1.3 

Deaf-blindness 

2.5 

1.2 

0.9 

1.0 

0.9 

Traumatic brain injury 

1.4 

0.6 

1.2 

0.6 

1.2 

Developmental delay 

3.6 

0.6 

1.6 

0.5 

1.0 

All disabilities 

1.5 

0.5 

1.5 

0.9 

0.9 


Note: Risk ratios were calculated by dividing the risk index for the racial'ethnic group by the risk index for all other racial/ethnic 
groups combined and rounding the result to one decimal place. 


In 2003. African American and American Indian Alaska Native students were more likely to 
be served under Pan B than all other racial ethnic groups combined (1.5 times more likely); 
Asian'Pacific Islander. Hispanic and white students were less likely to be served under Part B 
than all other racial ethnic groups combined (0.5. 0.9 and 0.9, respectively). 

American Indian/Alaska Native students were 1.8 times more likely to receive special 
education and related services for specific learning disabilities and 3.6 times more likely to 
receive special education and related services for developmental delay than all other 
racial/ethnic groups combined. 

Asian Pacific Islander students were 1.2 times more likely to receive special education and 
related sendees for heanng impairments, autism and deaf-blindness than all other 
racial/ethnic groups combined. 

African American students were 3.0 times more likely to receive special education and 
related sendees for mental retardation and 2.3 times more likely to receive special education 
and related sendees for emotional disturbance than all other racial ethnic groups combined. 






























30 


Minorities in Special Education 


Hispanic students were 1.2 times more likely to receive special education and related services 
for hearing impairments and 1.1 times more likely to receive special education and related 
services for specific learning disabilities than all other racial/ethnic groups combined. 

White (not Hispanic) students were 1.6 times more likely to receive special education and 
related services for ‘other health impairments' than all other racial/ethnic groups combined. 

To what extent are students with disabilities of different racial/etlmic groups educated with 
their peers without disabilities? 


Table 3 

Percentage of students ages 6 through 21 with disabilities receiving special education and 
related services in different environments, by race/ethnicity: Fall 2003 


Race/Ethnicity 

Placement 

<21% of the 
day outside the 
regular 
classroom 

21-60% of the 
day outside the 
regular 
classroom 

>60% of the 
day outside the 
regular 
classroom 

Separate 

environments 

American 

Indian/Alaska Native 

50.2 

33.2 

13.6 

3.0 

Asian/Pacific Islander 

48.9 

23.6 

23.5 

4.1 

African American (not 
Hispanic) 

38.6 

28.1 

28.1 

5.2 

Hispanic 

46.3 

27.3 

22.9 

3.4 

White (not Hispanic) 

54.7 

27.6 

14.0 

3.6 


In 2003, for all racial/ethnic groups, the largest percentage of students with disabilities were 
educated in the regular classroom for most of the school day (that is, outside the regular 
classroom less than 21 percent of the day). However, the percentage of students in this 
environment varied for different racial/ethnic groups. 

Compared to students with disabilities from other racial/ethnic groups, African American 
students with disabilities were the least likely to be educated in the regular classroom for 
most of the school day (38.6 percent). White students with disabilities were the most likely to 
be educated in the regular classroom for most of the school day (54.7 percent). 

African American students with disabilities were more likely than students with disabilities 
from other racial/ethnic groups to be educated outside the regular classroom more than 60 
percent of the day (28.1 percent). They were also more likely to be educated in separate 
environments (5.2 percent). 














Statements 


31 


Do graduation and dropout rates vary for students with disabilities in different racial/ethnic 
groups? 


Table 4 

Students ages 14 and older with disabilities who graduated or dropped out, by race/ethnicity 
(2002-2003) 


Race/ethnicity 

Graduated with a 
regular diploma 

Dropped out 

Number Percentage 

Number Percentage 

American Indian/Alaska Native 

2,496 

43.3 

2,791 

48.4 

Asian/Pacific Islander 

3,875 

63.6 

1,481 

24.3 

African American 

28,456 

36.2 

32,772 

41.7 

Hispanic 

21,995 

44.2 

19,331 

38.9 

White (not Hispanic) 

137,588 

59.1 

69,562 

29.9 


In 2002-03, the graduation rate was highest for Asian/Pacific Islander (63.6 percent) and 
white (59.1 percent) students with disabilities. The graduation rate for all students with 
disabilities was 51.9 percent. 

The graduation rate was lowest for African American students with disabilities (36.2 percent) 
The dropout rate was lowest for Asian/Pacific Islander (24.3 percent) and white (29.9 
percent) students with disabilities. The dropout rate for all students with disabilities was 33.6 
percent. 

The dropout rate was highest for American Indian/Alaska Native students with disabilities 
(48.4 percent). 

African American (41.7 percent) and Hispanic (38.9 percent) students with disabilities had 
the second and third highest dropout rates. 

Civil Rights Data Collection 

The CRDC is a legislatively mandated survey that the U.S. Department of Education’s Office 
of Civil Rights (OCR) has used to collect data from a sample of school districts biennially 
since 1968—CRDC was formerly called the Elementary and Secondary School Civil Rights 
Compliance Report, or E&S surv ey for short. In addition to the original Title VI (prohibiting 
discrimination based on race, color, national origin, and language) surv ey items, over the 
years items were added to the CRDC regarding Title IX of the Education Amendments of 
1972 (prohibiting discrimination based on sex) and Section 504 of the Rehabilitation Act of 
1972 (prohibiting discrimination against persons with disabilities). 

In its 2003 study. Measuring Access To Learning Opportunities , the National Academy of 
Sciences (NAS) examined the continued relevance and adequacy of the Elementary' and 
Secondary School Civil Rights Compliance Report (E&S Survey) as a tool for enforcing civil 
rights laws in education, monitoring quality of access to learning opportunities, and research 
on other current issues of educational policy and practice. The Committee on Improving 















32 


Minorities in Special Education 


Measures of Access to Equal Educational Opportunity was formed to study the E&S Survey 
and its uses. The Committee commissioned five papers based on E&S Survey data and 
oversaw a basic analysis of data from the 2000 E&S Survey. 

Among the findings in its 2003 study, the National Academy of Sciences (NAS) indicated 
that 

...more emphasis historically has been placed on the collection of data from schools and 
districts regarding their compliance with these laws than on routine analyses and 
dissemination of findings. Information from the E&S survey usually represents a first but 
important step in the process of determining whether culturally diverse students, students 
with disabilities, students with limited English proficiency,...are affected by policies and 
practices that limit access to learning opportunities or resources. 

OCR reports that the survey has long been underutilized. Although some OCR 
enforcement staff reportedly use the data, most do not. No training is provided to OCR 
staff regarding technical issues is accessing and analyzing E&S survey data or potential 
uses of the data in enforcement. 

With some modification and closer coordination with other Education Department 
databases...E&S survey data could play a more prominent role than they have in the past 
in informing contemporary policy and research questions-especially the identification of 
possible unintended inequitable outcomes of various educational policies and practices. 

The Committee concluded that the E&S Survey continues to play an essential role in 
documenting disparities and providing information that is useful both in guiding efforts to 
protect students' civil rights and for informing educational policy and practice. It also 
concluded that the Survey's usefulness and access to the survey data could be improved. 
Recommendations for survey items and survey administration, improving data quality and 
availability, increasing access to and use of the data, and disseminating survey findings to a 
range of stakeholders, are included. 

A review of DoED's Annual Report to Congress of the Office for Civil Rights-Fiscal Year 
2006 (July, 2007) reflects an awareness and attention to its role in compliance reviews, civil 
rights enforcement and related assistance activities. Similarly, a review of the Department's 
web site indicates that it has made good progress in consolidate and connecting the collection 
and maintenance of data used for program management and policy decisions. This includes 
CRDC data sets for 2004, 2002, and 2000. Furthermore, the Department has established a 
series of web interfaces that allow the public ease of access to CRDC and other data 
collection efforts. A part of the CRDC data set includes IDEA data such as those displayed 
above. 

The Civil Rights Data Collection (CRDC), collected information on School Year 2005-06 
and School Year 2006-07 was completed the first week of July 2007, with an unprecedented 
100 percent of schools and districts in the sample responding with complete surveys and the 
earliest completion date for the survey as a whole. The sample included 5,929 districts and 
more than 60,000 schools. Work is presently underway to make the School Year 2006 and 
prior years' data available via EDFacts and to develop state and national projections for 




Statements 


33 


School Year 2006 based on the responses from the sampled schools and districts. What the 
findings of this most recent CRDC should be of immense interest to the USCCR. 

Impact of Special Education Identification and Placement 

Special education confers many benefits on students and thus can be seen as having a positive 
impact on students and families. Among these benefits are access to specialized services; 
specially designed, individualized and small group instruction: and, individualized 
curriculum. There may also be some negative consequences conferred on individual students 
as a result of special education identification and placement associated with having a 
disability. Among these are a) lowered expectations on the part of teachers and family 
members; b) restricted access to the general K-12 education program; and c) restricted 
access to higher education and post-high school employment. 

For students who have disabilities, the benefits of special education outweigh the negative 
impact. For other students, who perhaps are not academically successful but who do not have 
a disability, special education may be a short-term solution with long-term negative 
consequences. Special education placement has an impact upon individual students and their 
families. 

Disproportional placement has a net impact upon the educational system as a whole as 
indicated by the following: a) rising child count and case loads; b) rising costs and shifting 
costs in special education; c) need for recruitment of professionals from diverse cultures; d) 
need for preservice and in-service staff development to better equip staff to work with 
diverse students; e) need for improved assessment tools and instructional practices; and f) 
vulnerability to legal challenges through due process procedures and through the Office for 
Civil Rights. 

Responding to Disproportionality 

Disproportionality is a multi-faceted problem that can be geographically unique. For 
example, some districts' problems stem from disproportionate placement of limited English 
proficient students, whereas other districts' problems may deal with disproportionate 
representation of African American males in special education. Although there are some 
commonalties for dealing with these issues, the approaches that are used to address the 
underlying problems associated with each will most likely differ. 

Research suggests that reducing disproportionality requires a comprehensive approach that 
includes teacher training, culturally appropriate assessment and instruction, culmral 
sensitivity, home and school collaboration, and an effective pre-referral process. In schools 
where disproportionality has been determined, stakeholders must work through a problem¬ 
solving process that includes, but is not limited to, analyzing the problem, identifying 
existing resources, allocating and using resources, and correcting current practices. 

Evidence of successful responses in identified cases of, or with suspected practices that result 
in. disproportionality appear to be scarce. This may be due to both the complexity of the 
circumstances, the difficulty in measuring and documenting the “interventions," and the 
chronic nature of the problem. To the degree that documentation of effective school-level 



34 


Minorities in Special Education 


and/or district level approaches to what works in addressing disproportionality exists, it is 
important to place that evidence into the public commons if it is not there already. 

Conclusions 

Disproportionality, and its impact on student outcomes, continues to be a critical educational 
problem. The data displayed above from the recent 27th Annual Report to Congress on the 
implementation of the IDEA (2007) suggests that disproportionality at the national level 
continues. Information from the Department of Education indicates that major efforts to 
monitor, measure and address disproportionality in special education are under way at the 
federal level. 

The recommendations of the National Academy of Sciences (2003) for improving the CRDC 
(E&S survey), the quality of its data, the access to its data, the administration of the survey, 
and the dissemination of its findings to interested parties stand as a roadmap for 
improvement. At the same time, the Department's implementation of its IDEA 2004 
monitoring and improvement practices may fill a critical gap in understanding how state and 
local school districts' operations and practices can be (re)designed to address 
overrepresentation of diverse students in special education. The USCCR may want to 
consider hearing directly from key DoED personnel on how the various pieces of Title VI, 
Section 504, and IDEA practices work, individually and together, to affect student outcomes. 
Thank you for listening. 



Statements 


35 


Reginald M. Felton: “Minorities and Limited English Proficient (LEP) 
Students in Special Education” 

The National School Boards Association (NSBA). representing over 95.000 local school 
board members across the nation, would like to thank you for the opportunity to testify' today 
betore the United States Commission on Civil Rights on this important issue being addressed 
by local school boards and local communities. 

You will hear from others regarding the extensive research that has been conducted that 
confirms what we all believe: that minority students and Limited English Proficient (LEP) 
students are disproportionately represented in special education programs in our public 
schools. WTile much of the research affirms the disproportionate representation of these 
student groups, the research appears to be very limited regarding whether such students are in 
fact misrepresented. 

In our view, misrepresentation suggests that the students do not meet the legal eligibility 
requirements to be designated for special education services. The National School Boards 
Association (NSBA) agrees that there is disproportionate representation of non-Asian 
minority and LEP students in selected categories of students with disabilities in our public 
schools. However, we believe with few exceptions such students placed in special education 
meet the legal eligibility 7 requirements for such sendees. 

As the United States Commission on Civil Rights is fully aware, students in poverty and their 
families face far greater challenges whether related to access to quality' housing, quality 
healthcare, appropriate early childhood education and development opportunities, safe and 
drug-free environments, adequately compensated employment, and other aspects of quality 
living. Perhaps more disturbing, we know that African-American. Latino, and LEP students 
are disproportionately represented among students in poverty'. Therefore, to simply draw 
conclusioxis regarding disproportionate representation of African-American. Latino and LEP 
students in special education without also identifying and addressing other important and 
relevant factors would be misleading, and would in all probability' result in the development 
of remedies that may have little chance of effectively eliminating the problem. 

Federal Funding and Policy 

In addressing special education services in our public schools, it is important for the 
Commission to note that for over three decades. Congress has formally acknowledged the 
fact that students with disabilities require additional accommodations and innovative 
instructional programs that are generally more costly than regular educational services. In 
fact. Congress promised to support states and local communities by contributing 40 percent 
of the cost. Since that time, regular education and special education groups have joined 
forces to pressure Congress to keep true on its promise. However, here we are over 30 years 
later and still. Congress funds less than 20 percent of these costs, leaving states and local 
communities short-changed. 

In practical terms, what this means is that there is no financial incentive for schools to 
identify’ students for special education sendees if such students do not meet the eligibility 



36 


Minorities in Special Education 


requirements. Further, the law mandates that when students are identified for special 
education services, such services must be provided even if funds for other educational 
services must be re-allocated. Therefore, this notion that schools profit by placing more 
students in special education is simply not ti*ue because schools are never fully funded at a 
level that matches the costs. 

However, because this rationale had been offered by a number of special interest groups, 
NSBA, during the last reauthorization of the Individuals with Disabilities in Education Act 
(IDEA) was successful in securing two new provisions in the law that would provide greater 
support to our local schools and students with disabilities. 

The first provision allows local school districts to set aside funds to conduct evaluations of 
students without requiring the students to be formally designated as special education 
students. As a result, some evaluations may be conducted by school officials that would 
allow teachers, experts and parents to make decisions regarding learning abilities without the 
“labeling” of students that may be unnecessary. 

The second new provision requires states to pass laws or to establish formal memorandums 
of agreement to formally identify which agencies would be responsible for providing specific 
related non-educational services that are necessary for so many students with disabilities to 
ensure the desired educational outcomes. The benefit, of course, is that local school districts 
are no longer assigned such costly responsibilities by default. Rather, states must consciously 
make decisions as to which agencies should be responsible for what specific services, and 
hopefully state legislatures will also provide the necessary funding, thus taking some of the 
pressure off local school districts that may not have the necessary resources within their own 
budgets. 

Defining Disability and Eligibility for Special Education 

Another important issue for consideration by the Commission is that the definition of 
students with disabilities is very comprehensive with a full range of categories and 
conditions; some requiring extensive costly support, while others only requiring minimal 
accommodations. Therefore, the National School Boards Association would urge you to 
sponsor additional comprehensive studies regarding the representation of minorities and LEP 
students among the broad range of categories as well as the differences in the per pupil level 
of funding needed to accommodate the students within these various categories. We believe 
that you will find that the representation of minorities and LEP students varies among the 
categories, and in fact such groups may be less represented among those categories requiring 
the greatest support systems and therefore the greatest cost. 

Local School District Preventive and Corrective Strategies 

Local school districts across the nation continue to be committed to improving the 
methodology for identifying and placing minority and LEP students in special education 
programs. In a study conducted by the NSBA Council of Urban Boards of Education 
(CUBE), a number of on-going strategies have been identified. The most common strategies 
involve the use of pre-referral assessments and accommodations to address emerging 
behavioral and/or academic issues. Pre-referral efforts include parent conferences, classroom 



Statements 


37 


observation, developing and monitoring of corrective plans, curriculum-based assessments, 
adjustments to instructions, and expanded options for accommodations. 

Other efforts include more effective staff training focusing on cultural and ethnic 
competency, special measures in identifying LEP students, and monitoring of individual 
schools tor high referral rates. Additionally, many school districts have re-allocated staff 
resources to conduct independent second-level reviews of placements for appropriateness, 
ensure culturally and ethnically diverse and competent placement teams, and to develop 
improved evaluation guidelines. 

Further, many local school districts are using various preschool assessment strategies. 
Commonly identified techniques include child find activities, assessing preschool children 
upon referral, screening all children upon entry into kindergarten, collaborating with 
community agencies including Head Start, childcare providers and hospitals, and providing 
special and regular education sendees directly to preschool children, depending on state and 
local law. Other measures include providing parents with information and training, training 
for instructional staff, and providing transitional sendees for children entering kindergarten. 

School boards across the nation will continue to provide leadership in the development of 
innovative ways to improve the processes for identifying and placing students to achieve the 
desired educational outcomes. 

Universal Design for Learning—an Emerging Concept 

Now I would like to mm vour attention to an emerging concept known as universal design 
for learning (UDL). Most of the discussions to date have focused on specific improvements 
that could be made within our existing framework and svstems to deliver educational 
sendees. However, one emerging concept based in research that desen es our full 
consideration is UDL. 

In the past few years. UDL has emerged as one of the most promising, research-based 
strategies for improving education for all learners, not just those students placed in special 
education programs. UDL provides curricular flexibility in activities, in the ways information 
is represented, in the ways students respond or demonstrate knowledge, and in the ways 
students are engaged. The use of technology is also an important component of UDL. 

As we are aware, students come to the classroom with a variety of needs, skills, talents, and 
interests. For many learners, the typical curriculum—which includes goals, instructional 
methods, classroom materials, and assessments—has many barriers and roadblocks, while 
additional innovative supports are relatively few. Faced with an inflexible curriculum, 
students, teachers and principals are expected to make extraordinary adjustments - and are 
held accountable for making measurable progress. UDL turns this scenario around, placing 
the burden to adapt on the cumculum itself, rather than the student. 

A review of the literature on UDL developed by the Center for Applied Special Technology 
(CAST), suggests that educators, including curriculum and assessment designers, could 



38 


Minorities in Special Education 


improve educational outcomes for diverse learners by applying the following principles to 
the development of goals, instructional methods, classroom materials and assessments: 

■ Provide multiple and flexible methods of presentation to give students with diverse 
learning styles various ways of acquiring information and knowledge. 

■ Provide multiple and flexible means of expression to provide diverse students with 
alternatives for demonstrating what they have learned, and 

■ Provide multiple and flexible means of engagement to tap into diverse learners’ 
interests, challenge them appropriately, and motivate them to leam. 

The term “universal design” is borrowed from the movement in architecture and product 
development that calls for curb cuts, automatic doors, video captioning, speakerphones, and 
other features to accommodate a vast variety of users, including those with disabilities. 
Experience shows that all such flexible designs are less expensive and cumbersome than 
costly retrofits, and that, in fact, everyone benefits from universal design features, as anyone 
who has watched video with captions in a busy gym or airport can attest. 

Students differ from one another in many ways and present unique learning needs in the 
classroom setting, yet high standards are important for all students. By incorporating supports 
for particular students, it is possible to improve learning experiences for everyone, without 
the need for specialized adaptations down the line. For example, captioned video is of great 
help to deaf students—but is also beneficial to students who are learning English, students 
who are struggling readers, students with attention deficits, and even students working in a 
noisy classroom. 

The advent of digital multimedia, adaptive technologies, the World \\ ide Web, and other 
advancements make it possible on a broad scale to individualize education for individual 
students. Developers and practitioners of UDL apply the inherent flexibility of digital media 
to individualize educational goals, classroom materials, instructional methods and 
assessments. Thus, each student has an appropriate point-of-entry into the curriculum - and a 
pathway towards attainment of educational goals. 

Such emerging concepts as UDL offer both regular and special education communities an 
opportunity to accomplish real reform in education at a time when the numbers of students 
with disabilities continues to increase and the drop-out rates among non-Asian minorities in 
regular education are approximately 50 percent. UDL represents one approach that 
simultaneously addresses instructional methods, classroom materials and assessments 
through the use of technology. The potential exists for UDL to provide teachers with 
unlimited ways to present materials to students with diverse learning styles, allow for 
multiple means of expression in demonstrating what students have learned, and offer 
multiple means of engagement. 

UDL may not be the all-encompassing answer, but such concepts as UDL could change the 
paradigm and eliminate the need to divide regular education from special education in the 
future - and thus ensure the delivery of high quality educational services to all students. 



Statements 


39 


Summary 

In closing, the National School Boards Association again thanks you for the opportunity to 
testify and urges the Commission to fully address those concerns that we have identified in 
our statement. We remain committed to improving student achievement for all students and 
preserving both equity and excellence in the delivery of educational services in our public 
schools. 

Questions regarding this statement may be directed to Reginald M. Felton, director of federal 
relations, at (703) 838-6782. or by e-mail at rfeltonfa nsba.org. 



40 


Minorities in Special Education 


Matthew Ladner: “Minority Children and Special Education: Evidence 
of Racial Bias and Strategies to Avoid Misdiagnosis 

Special Education Bias: Evidence from The Office of Civil Rights 

Researchers have known for some time that minority students in public schools are over¬ 
represented in a number of special education categories. For example, while African- 
American students account for only 16 percent of the U.S. student population, they represent 
nearly a third (32 percent) of all students in programs for mild mental retardation." Equally 
alarming are the recent findings of a growing body of research that indicates affluent districts 
label minority students as mentally retarded at higher rates than White students. A 2002 
Harvard Civil Rights Project study, for instance, found not only are there startlingly large 
racial disparities in special education overall, African-American students are three times 
more likely to be labeled as mentally retarded than White students/ 

In 2001, the Progressive Policy Institute and the Fordham Foundation issued a joint 
collection of studies on special education policy entitled Rethinking Special Education for a 
New Century. A study in this volume, “Special but Equal: Race and Special Education," 
statistically examined racial special education rates across districts and counties from several 
states, testing for the independent effects of a number of separate variables including student 
poverty, school spending, average class size, and racial makeup of the district. The paper 
examined county-level data from California, Colorado, Florida, Georgia, Maryland, New 
York, Oregon, Texas, Wisconsin, and district level data from Texas, Florida, and Maryland. 
After controlling for school spending, student poverty, community poverty, and other factors, 
the research revealed a common pattern of predominantly White public school districts 
placing minority students into special education at significantly higher rates than districts 
with higher percentages of minorities in their student bodies. 

In 2003, the Goldwater Institute released a study on race and special education in Arizona 
using data from the Arizona Department of Education and the United States Department of 
Education Common Core of Data. The Goldwater study demonstrated that minority special 
education rates are significantly higher in predominantly White Arizona public school 


1 This paper represents an updated and revised version of an earlier publication from the same author, “Race to 
the Bottom: Minority Children and Special Education in Arizona Public Schools.” The earlier report is available 
on the internet at http://www.goldwatermstitute.org/AboutUs/ArticleView.aspx7idM42 

2 See P. Robertson and M. Kushner, et a/., “An update of Participation of Culturally and Linguistically Diverse 
Students in Special Education: The Need for a Research and Policy Agenda.” The Bilingual Special Education 
Perspective 14 (1994): 3-9. 

1 Dan Losen and Gary Orfield. Racial Inequity ’ in Special Education. (Boston. Mass: Harvard University Press. 
2002), http://gseweb.harvard.edu/%7Ehepg/introduction.html. 

4 Matthew Ladner and Christopher Hammons, “Special But Unequal: Race and Special Education,” in Chester 
Finn et al. (eds.) Rethinking Special Education for a New Century for a New Century (Washington D.C.: 
Thomas B. Fordham Foundation, 2001): 85-111, 
http://www.edexcellence.net/foundation/topic/topic.cfm7topic_idM5 




Statements 


41 


districts, despite the fact that disability labels for WTiite students are substantially lower.' In 
October ot 2003. the Goldwater Institute released a policy brief identify ing 40 Arizona 
school districts and charter schools with Hispanic disability rates 40 percent or more above 
the average statewide placement rate for Hispanic students. The study also noted that .Arizona 
charter schools that are predominantly White do not display the same tendency to over-enroll 
Hispanic children/ 

These findings mm conventional wisdom about the contributing causes of learning 
disabilities on its head. Presumably, poverty and the attendants of poverty, such as poor 
prenatal care and poor nutrition, are the primary causes of many disabilities. Why then 
should minority special education rates be substantially higher in predominantly White 
districts, where average family incomes for minority students are likely to be higher than in 
inner city school districts? 

The Goldwater Institute study of Arizona special education rates considered three broad 
possible causes. The first culprit was the possible existence of financial incentives that 
encourage placing children in special education programs. District officials manipulating 
standardized accountability’ test scores represent another broad possibility. Another broad 
possible culprit was far more direct if impossible to prove: simple racism. The possible use of 
special education programs to segregate minority children out of regular classrooms is 
entirely consistent with the findings of previous research. 

Concerning financial motives, a growing body of research now indicates that financial 
incentives play a pernicious role in special education rates. For example, in their most recent 
study on the subject. Manhattan Institute scholars Jay P. Greene and Greg Forster 
interviewed state officials who referred to the special education funding system used in most 
states as "the bounty’ system." Under the bounty system, state governments compensate 
school districts for each additional student classified as disabled. The economics of special 
education are complex, and school districts claim that many disability’ types are net drains on 
the finances of school districts even after receiving compensation. Nevertheless, as Greene 
demonstrates elsewhere, only the percentage of students classified as learning disabled has 
significantly increased since 1976. The rates for disabilities that typically warrant heavy 
district spending have remained relatively flat. 9 Obviously, such starkly contrasting trends 
raise serious concerns. 

Congress ended the “bounty system" funding in 1997 and now distributes federal funds to the 
states in a lump sum based on a demographic profile, not the number of children identified as 


Matthew Ladner. "Race and Disability: Racial Bias in .Arizona Special Education." Goldwater Institute Policy 
Report =178. March 31. 2003. http: www.goldwaterinstitute.org article.php 251.html. 

" Matthew Ladner. "No Exit. No Voice: Hispanic Disability Rates in .Arizona Schools." Goldw ater Institute 
Policy Brief. Oct. 23. 2003. http: www.goldw atennstitute.org pdf materials 363.pdf. 

Matthew Ladner. "Race and Disability: Racial Bias in Arizona Special Education." Goldwater Institute Policy 
Report =178. Mar. 31. 2003. http: www.goldw aterinstitute.org article.php 251.html. 

8 Jav P. Greene and Greg Forster. "Effects of Funding Incentives on Special Education Enrollment." Manhattan 
Institute for Policy Research. December 2002. http: www.manhattan-institute.org html cr_32.htm. 

~ Jav Greene. "The Myth of the Special Education Burden." Education Week. June 12. 2002. 




42 


Minorities in Special Education 


disabled. In so doing, Congress attempted to remove the financial incentive for districts to 
label children disabled in order to qualify for increased funding. Sixteen states have followed 
suit and switched their own funding mechanisms for districts to a similar formulaic “lump 
sum” method to remove perverse financial motivation. 

Greene and Forster theorized that the bounty system provides a perverse financial incentive 
for schools to label more students as disabled. Greene and Forster compared the rates of 
growth in special education enrollment in states with and without the bounty funding system. 
Based on this analysis, the authors attribute 62 percent of the increase in special education to 
these financial incentives in bounty system states. Greene and Forster estimate that disability 
labels attributable to the bounty system translate into roughly 390,000 extra students placed 
in special education, resulting in additional total spending of over $2.3 billion per year. 10 In 
Arizona, Greene and Forster estimate the total resulting additional spending to be $50 million 
per year. * 11 Predominantly White districts may identify additional minority children in 
response to financial incentives under two circumstances: first, if district officials consider 
minority children closer to the “borderline” of being disabled, or second, if they are 
motivated by racial prejudice or stereotypes or a desire to remove children from the regular 
classroom setting. 

Manipulation of standardized testing results by schools and districts represents another 
possible incentive to label children as disabled. The No Child Left Behind act, following the 
model developed in Texas, requires high-stakes testing and disaggregates the results by race. 
Under such a system, schools and districts are judged not only by their overall scores, but 
also upon the scores of student subsets, such as African-American, Flispanic, or economically 
disadvantaged students. The advantage of such a system is that predominantly Anglo school 
systems are not able to hide the poor performance of minority students. A possible 
disadvantage of such a system may be the creation of an incentive to label low-performing 
minority children as disabled, thus exempting them from normal testing while increasing the 
average performance of the student’s subset. The goal of such manipulation could be to 
exclude students deemed unlikely to pass from the “accountability subset” upon which 
schools and districts are evaluated. ' 

This latter perverse incentive seems to be a greater problem in stand-alone state 
accountability systems than under NCLB. NCLB includes special education students as an 
accountability subset. Under NCLB, therefore, special education students must be tested and 
school performance will be judged according in part to the academic progress of students 
with disabilities. Public school administrators have put a great deal of pressure on Congress 
and the Department of Education to water down this requirement, both administratively and 


1,1 Jay Greene and Greg Forster, “Effects of Funding Incentives on Special Education Enrollment,” The 
Manhattan Institute for Policy Research, December 2002, http://www.manhattan-institute.org/html/cr_32.htm. 

11 Matthew Ladner, “Race and Disability: Racial Bias in Arizona Special Education,” Goldwater Institute Policy 
Report #178, Mar. 31, 2003, http://www.goldwaterinstitute.org/article.php/251.html. 

1_ The possibility of districts labeling minority students in reaction to state accountability exams remains 
speculative at this point and deserves further study. 




Statements 


43 


legally. 1 Even with NCLB's requirement in place, many states have separate accountability 
systems in which excluding students from subsets could influence rankings. 

While the exact motivations of predominantly White school districts for enrolling higher 
percentages of their students in special education is not entirely clear, evidence of the 
practice is evident. Even after controlling for school spending, student poverty, community 
poverty, and other factors, research uncovered a pattern of predominantly White public 
school districts placing minority students into special education at significantly higher rates 
that more racially integrated districts. For example, districts with 75 percent or more White 
student body were found to have Hispanic special education rates 47 percent higher than in 
school districts that were predominantly minority (with student bodies 75 percent or more 
minority). 14 

Minorities and Disabilities in Arizona Public Schools 

The previous Goldwater Institute studies on race and special education used school district 
level data provided by the Arizona Department of Education and the United States 
Department of Education Common Core of Data. While informative, this data was limited to 
overall district averages for children with disabilities by racial group. A new source of data 
allows for a closer examination. The 2000 Office for Civil Rights Elementary and Secondary 
School Survey gathered data on race and special education from all of the nation's public 
schools. The Office of Civil Rights (OCR) distributes this non-suppressed data for the 
exclusive use of individuals conducting research who have signed an application for use of 
the data and who meet with the individual approval of the United States Office of Civil 
Rights. L> 

The advantaae of this new data is twofold. First, it allows for the examination of individual 
school level data rather than broad district averages. The previous research in Arizona and 
elsewhere found that districts with more predominantly White student bodies label 
significantly higher percentages of their minority students as disabled. If the relationship 
between race and disability labeling is robust, it should be possible to find the same pattern at 
the level of individual schools as well as at the school district level. The Office of Civil 
Rights (henceforth OCR) data therefore serv es as an alternative test of the phenomenon in 
question. 

Second, the OCR data permits the exploration of individual disability type by race and 
gender, something not possible with previous data. The previous data only allowed for the 
exploration of total disability rates by race, not individual disability categories. Researchers 
do not suspect all disability categories equally in terms of suspected abuse. Some types of 
disabilities, for example, blindness, or hearing impairment, rely upon objective medical 
diagnosis. Disabilities such as Specific Learning Disability (SLD). however, are famously 


13 See Mark Jewell "No Child Left Behind:" Implications for Special Education Students and Students with 
Limited English Proficiency on the internet at http: www.newhorizons.org spneeds improvement jewell.htm 

14 Matthew Ladner. "Race and Disability: Racial Bias in Arizona Special Education." Goldwater Institute Policy 
Report #178. Mar. 31. 2003. http://www.goldwaterinstitute.org/article.php 251.html. 

15 Anyone w ishing to examine these data for themselves can apply to the federal Office of Civil Rights in the 
United States Department of Education, as the author is prohibited from sharing the data by standard agreement 
w ith the Office of Civil Rights. The Office of Civil Rights can be contacted by email at ocrdatafa ed.gov. 




44 


Minorities in Special Education 


vague, defined by a perceived difference between ability and tested performance. Recent 
medical evidence points to the fact that public schools often mistakenly label children as 
having a specific learning disability when in fact they have simply received poor early 
reading instruction. Research by Dr. Reid Lyon of the National Institutes for Health and his 
colleagues estimates that approximately 70 percent of children labeled with a specific 
learning disability could have avoided placement into special education with intensive early 
remedial reading intervention- preferably beginning in kindergarten and first grade for 
students with poor reading skills. In the absence of such intervention, school districts 
inappropriately place many into special education. 16 

The OCR data allows us to examine disability labeling by type and gender. The data focus on 
males because male students constitute 66 percent of disabled public school children, and are 
the most likely students to be from mislabeled. All data presented below are from Arizona 
traditional public schools grades K-12. Figure 1 below presents the disability rates for 
Hispanic male students according to the racial balance of the student bodies of the individual 
schools. The analysis divides Arizona traditional public schools in to four separate 
categories: those with 25 percent or fewer White students, those with 26 percent to 50 
percent White students, those with between 51 percent and 75 percent White students, and 
those with more than 75 percent of students White. The disability categories charted are the 
more subjective categories of disability: specific learning disabilities (SLD), emotionally 
disturbed (ED), and mental retardation (MR). 17 If the pattern demonstrated in previous 
studies holds, we expect to find that significantly higher percentages of Hispanic male 
students labeled in these categories in predominantly White districts compared to other 
districts. 1N 


16 See G. Reid Lyon, Jack M. Fletcher, Sally E. Shaywitz, Bennett A. Saywitz, Joesph K. Torgesen, Frank B. 
Wood, Anne Schulte, and Richard Olson. “Rethinking Learning Disabilities,” in Chester Finn et al. (eds.) 
Rethinking Special Education for a New Century for a New Century. (Washington D.C.: Thomas B. Fordham 
Foundation, 2001): 259-288. 

1 The Mental Retardation label is usually thought of as a relatively objective diagnosis. An IQ score of less 
than 70 qualifies someone as Mentally Retarded. The condition is diagnosed with a respected test and involves a 
clear cut-off point. Subjectivity, however, can be introduced into the process by test administration. For 
examples, students near the cut-off can be retested until they fall below the cutoff point. The diagnosis usually 
relies on a single score rather than an average. 

1N The OCR data contains missing information for some schools, which were excluded from the analysis. 

Schools were included in this analysis for a given racial/ethnic group if there were 10 or more total students of 
the respective group, and if the school in question had students with the respective disability enrolled. The cases 
were chosen in this fashion to avoid including cases where an extremely small number of students in these 
respective ethnic groups where a single disability diagnosis would result in an extremely high percentage of 
students labeled as disabled. For example, a school with only two Hispanic children, one of whom has a 
disability label would register as having a Hispanic disability rate of 50 percent. Additionally, there are a 
number of schools which either have no students of particular ethnic racial groups at all, or else none enrolled in 
special education. Such schools were excluded from the analysis as well. The averages therefore represent 
statewide averages for those public schools enrolling students from the respective racial/ethic groups in special 
education programs, with exclusions for missing data and small ethnic/racial sample sizes. 




Statements 


45 


Figure 1: Hispanic Male Disability Rates in Arizona 
Public Schools by Racial Composition of Student 

Body 


12% n 


10% -I 


8 % - 
6 % - 
4% - 
2 % - 
0 % - 


9.7% 



11 . 2 % 


8 . 2 % 



5.4% 

4.7% 


Specific Learning 
Disability 

••♦a* Emotionally 
Disturbed 

—♦—Mentally Retarded 


<25% 25-50% 50-75% > 75% 
White White White White 


The OCR data follows the same general pattern found in previous research: Hispanic males 
are labeled at higher rates in predominantly White school districts (75 percent or more 
White) in the specific learning disabilities, emotional disturbance, and mentally retarded 
categories. Predominantly White school districts label more that twice as many Hispanic 
males as emotionally disturbed (from 2.2 percent of Hispanic males to 5.4 percent) as do 
predominantly minority schools (75 percent or more minority). Predominantly White distncts 
classify 80 percent more Hispanic males as mentally retarded on a percentage basis, and the 
increase in the Specific Learning Disability Label category is more than 42 percent. 

Figure 2 below presents the equivalent figures for American Indians male students in 
Arizona public schools. Again, the same pattern appears: SLD. ED and MR rates are 
substantially higher in predominantly White school districts. Figure 3 presents the OCR 
figures for African American students. 


















46 


Minorities in Special Education 


Figure 2: American Indian Male Disability Rates in 
Arizona Public Schools by Racial Profile of 
Student Body 


20 . 0 % 

18.0% 

16.0% 

14.0% 

12 . 0 % 

10 . 0 % 

8 . 0 % 

6 . 0 % 

4.0% 

2 . 0 % 

0 . 0 % 



19.0% 


13.7% 

-^-Specific Learning 
Disability 

10.5% 

Emotionally 

Disturbed 


Mentally 

Retarded 


< 25% 25-50% 50-75% > 75% 
White White White White 


The OCR data show that American Indian males attending predominantly White Arizona 
public schools are profoundly more likely to receive disability labels when compared to their 
peers in more integrated schools. The rate of children labeled as Emotionally Disturbed more 
than triples (from 4.1 percent to 13.7 percent) between predominantly minority and 
predominantly White schools. The percentage of American Indian males labeled as mentally 
retarded nearly doubles, while the percentage of such students labeled with Specific Learning 
Disabilities increases by 28 percent. 

The trends for African American males show that the percentage of students labeled as 
Mentally Retarded increases by nearly 55 percent between predominantly minority and 
predominantly White districts. Trends for African American males labeled with a Specific 
Learning Disability or Emotionally Disturbed are relatively flat. 













Statements 


47 


Figure 3: African-American Male Disability Rates 
in Arizona Public Schools by Racial Profile of 

Student Body 


18.0% 
16.0% - 
14.0% 
12 . 0 % - 
10 . 0 % - 
8 . 0 % - 
6 . 0 % A 
4.0% - 
2 . 0 % - 
0 . 0 % - 



15.5% 


4 11 m 


•Specific Learning 
Disability 

Emotionally 
Disturbed 

*4?* Mentally Retarded 


< 25% 25-50% 50-75% > 75% 
White White White White 


The same general trend is evident across ethnic groups and disability types. Predominantly 
White schools label higher percentages of their minority students. Previous research 
demonstrated a pattern whereby White disability rates were substantially lower in 
predominantly White school districts than they had been in more racially mixed school 
districts. Figure 4 below demonstrates that the same pattern holds true using the school- level 
OCR data as well. 19 

Similar to the district-level trends, the percentage of White students in special education 
declines sharply in schools with higher percentages of Whites. The percentage of White 
males labeled as ED declines by 58 percent between predominantly minority and 
predominantly White schools. Predominantly White schools label 28 percent fewer White 
male students as having a specific learning disability, and 77 percent fewer as mentally 
retarded when compared to schools where Whites represent less than 25 percent of the 
student body. 


19 Matthew Ladner. “Race and Disability: Racial Bias in Arizona Special Education.” Goldwater Institute Policy- 
Report #178. March 31.2003. http://www.goldwaterinstitute.org/article.php/251.html. 













48 


Minorities in Special Education 


Figure 4: White Male Disability Rates in Arizona 
Public Schools by Racial Profile of Student Body 


14.0% 

12 . 0 % 

10 . 0 % 

8 . 0 % 

6 . 0 % 

4.0% 

2 . 0 % 

0 . 0 % 


4,11.4% 




8.3%,* s ^ 8.1 % 


2 . 6 % 
1.3% 



Specific Learning 
Disability 

— 4 — Emotionally 
Disturbed 

Mentally Retarded 


< 25% 25-50% 50-75% > 75% 
White White White White 


As discussed in previous research, one would expect some decline in White disability rates in 
more predominantly White schools and/or districts due to the role of poverty in disability 
labels. Due to the relationship between housing segregation and wealth, fewer children in 
predominantly White schools and districts will be growing up in poverty. However, the same 
should be true, for minority students.Alternatively, one could interpret the trends in White 
rates to show a general pattern across ethnic and racial groups by which racially isolated 
student groups receive disability labels at higher rates. The OCR data demonstrates the same 
pattern: rather than declining like White student rates, minority rates substantially increase in 
predominantly White schools. 

Figure 5 below demonstrates the extent of this increase. Figure 5 combines the Emotionally 
Disturbed, Mentally Retarded, and Specific Learning Disabled rates and compares the 
predominantly minority districts (25 percent or less White) to the predominantly White 
districts (75 percent or more White). _1 The data show the total percentage increase for 
American Indian Males, Hispanic Males, African American Males, and the total decline for 
White males. 

[Figure 5 was not received by the Commission.] 

Overall, the OCR school-level data track the general trends found in district level data 
strongly. Minority students in predominantly White district schools suffer a substantially 
higher incidence of inclusion in special education programs when compared to their peers in 


~° Minority family incomes are likely to be higher in Scottsdale than in Tucson, for example. 

_ The formula for this calculation was as follows: Predominantly White rate- Predominantly Minority 
rate/Predominantly Minority Rate. 













Statements 


49 


racially mixed schools. The question therefore moves from the extent of the problem to what 
to do about it. 

The Failure of the Regulatory Approach to Preventing Discrimination 

If the above school-level data represent evidence of widespread racial bias in public school 
special education programs, one must note that it is occurring in Arizona and in other states 
despite the long existence of large government agencies with responsibility to combat 
discrimination in public education. Of course, these agencies begin with the public school 
districts themselves, whose officials are bound by multiple laws prohibiting discrimination 
based on race or color. In addition, both state and federal education regulatory bodies are 

G- J 

legally bound to prevent racial discrimination in schools. 

The nature or existence of disabilities in children is inherently subject to dispute. Either 
parents or school district officials can initiate the process of labeling a child as disabled. 
Districts must secure a parent's permission before evaluating a child for a disability, and 
parents have the legal right to an outside evaluation. A group of district officials and the 
parents then review the evaluation, and if this group decides that the child has a disability, the 
process of drawing up an individualized education plan (known as an IEP) for the child 
begins. 

While parents are included in the identification process, they often defer to school district 
officials. When school officials assert that a child has a disability and tell the child's parents 
that special education services will improve their child's education, many parents believe that 
district officials are expens in their fields and have their children's best interests at heart. 
Wealthy and knowledgeable parents sometimes employ attorneys and outside evaluators with 
specialized know ledge of special education law. paperwork, and procedure. However, 
parents with few^er financial resources rarely benefit from such expertise. 

The legally well-defined process requires a large amount of paperw ork for each step. The 
emphasis of both state and federal oversight, and even litigation betw een parents and school 
districts, lies in the area of process compliance. The “compliance model” used by the special 
education system, emphasizing procedure and forms over educational achievement, largely 
explains the relatively ineffectual nature of the regulatory apparatus. Critics of the system 
have noted that the “compliance model" has in fact failed to ensure widespread compliance 
with special education laws, while generating a number of perverse outcomes." 

Congress passed the Education for All Handicapped Children Act (EAHCA) in 1975, later 
renamed the Individuals with Disabilities Education Act (IDEA). IDEA serves as the 
foundation of special education law, requiring public schools to provide a free appropriate 
public education for all children with disabilities. Subchapter II, Section 1418 of IDEA 
requires states and territories to collect data regarding the racial makeup of students in special 
education programs and the placement of students. In the case of a determination of 


:: Patrick J. Wolf and Bryan Hassel. “Effectiveness and Accountability (Part 1): The Compliance Model.” in 
Chester Finn et al. (eds.). Rethinking Special Education for a New Century for a New Century. (Washington. 
D.C.: Thomas B. Fordham Foundation. 2001): 53-76. 




50 


Minorities in Special Education 


significant disproportionality the law calls for the state or territory “shall provide for the 
review and, if appropriate, revision of the policies, procedures, and practices used in such 
identification or placement to ensure that such policies, procedures, and practices comply 
with the requirements of this Act.” 23 While it seems obvious why Congress created this 
language, it does not seem clear that it has in fact had the intended effect. Racial 
disproportionality in special education has existed for decades, and the problem still exists 
and regulatory approaches have not prevented the problem. 

Lessons from Pennsylvania 

The policies, procedures, and practices in Arizona special education warrant both review and 
revision. What actions would remedy the problem? While the possible causes of minority 
over-enrollment are complex, the initial Goldwater Institute study made two broad 
recommendations: ending the “bounty” funding formula providing additional funds on a per- 
student basis, and instituting a voucher program for disabled students modeled after Florida's 
McKay Scholarship Program. Lawmakers should replace the bounty system with a 
placement-neutral funding formula to eliminate perverse financial incentives to enroll 
students in special education. The logic behind this recommendation is simple: the sources of 
general over-enrollment are likely to be at least partially responsible for the over-enrollment 
of minority students. Andrew J. Rotherham and Sara Mead of the Progressive Policy Institute 
in fact argue against school choice programs for disabled children in part because they 
believe that such a system could complicate efforts to move states to placement-neutral 

_ ->4 

funding formulas.“ 

Recently, however, evidence has become known that raises questions about the adequacy of 
a placement-neutral funding formula to address the problem of the over-enrollment of 
minority students. In February of 2004, the Commonwealth Foundation released Racial Bias 
in Pennsylvania Special Education, which examined minority special education rates in 
Pennsylvania. 2 " 

Pennsylvania represents an extremely interesting case for exploring the existence of racial 
imbalances in special education because it has neither a bounty funding system nor high- 
stakes testing. Pennsylvania was a pioneer in switching from the bounty system to a lump¬ 
sum formula in 1992. Pennsylvania provides special education funding to school districts 
based upon a neutral formula, and it does not provide increased special education funding 
with each new special education label. In addition, the state's accountability system contains 
no sanctions for low-performance but actually instead financially rewards low-performing 
school districts with additional state funds. 


' The relevant sections of the Individuals with Disabilities Education Act are available at 
http:/' www.edlaw.net/service/20us 1418.html. 

24 Andrew J. Rotherham and Sara Mead, “Think Twice: Special Education Vouchers are not Alright.” 
Publication of the Progressive Policy Institute, June 25, 2003, 

http://www.ppionline.org/pp] ci.cfm?knlgAreaID= 110&subsecID=900030&contentID=251810. 

Matthew Ladner, “Racial Bias in Pennsylvania Special Education.” Policy Brief of the Commonwealth 
Foundation, February 2004, http://www.commonwealthfoundation.org/education/nr2004021 l.shtml. 




Statements 


51 


Despite the lack of financial or testing incentives to place students in Pennsylvania districts, 
substantial racial disparities were evident from the Pennsylvania data. Figure 6 below shows 
disability rates by ethnic group for Pennsylvania public schools. The data, from the United 
States Department of Education's Office of Civil Rights 2000 Elementary and Secondary 
School Survey, presents school- level findings broken out by race and disability type for the 
broad categories of Emotionally Disturbed (ED). Mentally Retarded (MR) and Specific 
Learning Disability (SLD). The data represents school-level information and averages from 
schools with at least 10 members of the respective ethnic group. The trends among Whites 
and minority students move in opposite directions. The numbers show that African American 
males have higher disability 7 rates in these three categories, which are 88 percent higher in 
predominantly White districts than in predominantly minority districts. White male disability 
rates were 39 percent lower in the predominantly White districts. 


100 % - 
80 % - 
60 % - 
40 % - 
20 % - 
0 % - 
- 20 % - 
- 40 % - 
- 60 % - 


Figure 6: Increase/Decrease in Disability Rates in 
Primarily White PA Public Schools to Primarily 
Minority Public Schools (ED, MR, SLD) 

88 . 9 % 



□ Black Males 

O Hispanic Males 

□ White Males 




s 











- 39 . 1 % 


While placement-neutral funding represents a good practice, and the racial imbalances in 
Pennsylvania might have been even worse without it. the results raise serious doubts as to 
whether neutral placement funding alone could address the racial imbalances seen in 
Arizona. It is entirely possible that placement neutral funding puts a brake on over¬ 
enrollment over time, without ultimately reversing racial imbalances. 

Other research points to the possibility of improved screening techniques in order to reduce 
the misidentified children. Amanda VanDerFIeyden. Joseph Witt and Gale Naquin from the 
Louisiana State University Health Science Center, Louisiana State University and the 
University of New Orleans, respectively, have conducted research indicating that the public 













52 


Minorities in Special Education 


school officials can substantially improve the accuracy of the diagnosis process.“ The 
research indicates that teacher referrals to special education are unreliable, both in 
misidentifying students as having disabilities and in failing to recognize children with 
disabilities. An alternative screening technique, known as universal screening, shows 
significant promise reducing misidentification by testing all students at an early age and then 
providing remedial sessions to all students below grade level. 

The available evidence strongly suggests that simply changing the funding formula will not 
be enough to prevent school districts from using special education in a racially biased 
fashion. Although lawmakers around the country should alter the funding formula, Arizona 
policymakers would not be pleased if they took the same action as Pennsylvania lawmakers 
took more than a decade ago and found themselves with the sort of racial imbalances evident 
in Pennsylvania schools today. Further steps, such as diversifying and increasing the 
suppliers of special education services as well as the introduction of new screening 
techniques should be vigorously explored. 

Parental Satisfaction with The Mckay Scholarship Program 

Florida has taken the lead in special education reform with the launch of the McKay 
Scholarship Program. Launched in 1999, the program allows parents who are dissatisfied 
with the quality of their children’s education to seek other public and private options without 
having to resort to court action. The program equalizes opportunity for students of varying 
economic backgrounds, not just those whose parents can afford the cost of litigation. 

More than 18,000 students enrolled in the McKay program for the 2006-07 school year. Of 
811 private schools that applied to accept McKay Scholarship children. 308 are nonreligious 
and 503 are religiously affiliated schools. The disability profiles of students exercising choice 
through the program closely matches the population of disabled students m the Florida public 
school system, meaning private schools are serving children with a full spectrum of 
disabilities. Scholarship amounts vary between $5,039 at the low end to S2 1,907 at the high 
end, and average $7,206. 2; 

A recent survey demonstrates extremely strong support for the McKay Scholarship program 
from the parents of disabled children. Manhattan Institute scholars Jay P. Greene and Greg 
Forster recently released the first empirical study of the McKay program. The Manhattan 
scholars conducted a parental satisfaction survey of both parents who had used the program 
to transfer out of public school and parents who had used a McKay scholarship to transfer but 
had subsequently returned to a public school. 


Matthew Ladner, personal interview with Amanda M. VanDerHeyden. Supporting study, Amanda C. 
VanDerHeyden, Joseph C. Witt and Gale Naquin. “Development and Validation of a Process for Screening 
Referrals to Special Education" is available from the author at avande@comcast.net. 

~ See Florida Department of Education “Fast Facts on McKay Scholarships” at 
http://www.floridaschoolchoice.org/Information/McKay/files/Fast_Facts_McKay. pdf. 

' Jay P. Greene and Greg Forster, “Vouchers for Special Education Students: An Evaluation of Florida’s 
McKay Scholarship Program,” Manhattan Institute. June, 2003, http://www.manhattan-institute.org/cr_38.pdf. 




Statements 


53 


The results of the survey demonstrate that parents strongly favor the program. For example. 
92.7 percent of current McKay participants are satisfied or very satisfied with their McKay 
schools while only 32. 7 percent were similarly satisfied with their public schools. McKay 
parents found that their child's class size dropped dramatically, from an average of 25.1 
students per class in public schools to 12.8 students per class in McKay schools. In public 
schools. 46.8 percent of disabled students were bothered often and 24.7 percent were 
physically assaulted, while in McKay schools only 5.3 percent were bothered often and 6.0 
percent were assaulted. Perhaps most telling of all. over 90 percent of parents who had 
withdrawn their children from the program believe it should continue to be available to those 
who wish to use it. 

Andrew J. Rotherham and Sara Mead raise concerns about the McKay Scholarship route to 
reform, including the concern that the creation of such a program would create a perverse 
incentive for parents to seek disability labels for their children in order to access private 
schools." g Anecdotal evidence points to instances of affluent parents seeking Specific 
Learning Disability labels for their children so they can receive extra time on college 
entrance examinations or other perceived advantages. While there can be no doubt that the 
vast majority of lEPs are initiated at the behest of school district officials, especially for low- 
income children, a counter-trend of parent-initiated labels could indeed exist simultaneously 
in the complex world of special education. If parents are willing to go to such lengths simply 
for extra time on the Scholastic Aptitude Test, what would they do for the chance to send 
their children to a private school setting? 

The only parents likely to see their way through the complex process of having their children 
inaccurately labeled are those arming themselves with legal expertise and outside 
evaluations. It is crucial to note, however, that such parents are already accessing private 
schools by resorting to the legal system, often winning judgments far exceeding the cost of 
educating the child in the public system. The route to a private placement under current 
practice is first to seek a label from the district (with little incentive for the district to resist 
under the current bounty funding system). Next, parents could sue the district for failing to 
provide a Free and Appropriate Public Education (which can be proven by as little as 
paperwork errors on the part of district officials). 

Looming large in Rotherham and Mead's concern is the fact that the current IEP process 
itself is so inherently open to error. Universal screening procedures identifying and remediate 
early learning difficulties would greatly ameliorate concerns over false labeling- including 
the provision of scholarships to undeserving students. Implementation of universal screening 
would still require a gaming-minded parent to seek a label from the district, but every case of 
successful remediation would remove a student from the potential grey areas and from the 
potential pool of litigants. Anyone seeking to game the system would still be required to 
force a label onto their child over any objections from the district, with the district standing 
on much firmer ground with improved accuracy in identification. Finally, those choosing to 
exercise choice under a McKay Scholarship would be limited to the amount of funding 


29 Andrew J. Rotherham and Sara Mead, "Think Twice: Special Education Vouchers are not Alright,” 
Progressive Policy Institute. June 25. 2003. 

http://www 7 .ppionline.org ppi_ci.cfm?knlgAreaID=l 10&subsecID=900030&contentID=251810. 




54 


Minorities in Special Education 


already spent on their child in the public system, with no possibility of winning a “Cadillac 
placement" through the courts. The reforms considered here, in short, would do little increase 
the incentives for litigation while lowering the potential payoff from suits. 

For example. Arizona already has a program for private school placements for special needs 
students. According to the Arizona Department of Education, 1,170 special education 
students were attending private schools at public expense as of December 1, 2001. These 
students were attending private school at public expense either because their IEP committees 
had agreed to place them in a private institution, or as the result of a successful lawsuit 
against a school district for failure to provide and free and appropriate public education under 
the provisions of IDEA. In either case, such placements skew towards families who can 
afford legal counsel and outside evaluation expertise. The McKay Scholarship program 
equalizes opportunity by giving all dissatisfied parents the opportunity to choose a new 
provider for their child's education needs without complication. 

Finally, any potential gaming activities of parents pale in comparison to those currently 
undertaken by school district officials. The vast majority of mislabeled children have been 
placed in special education not at the behest of parents, but rather at the initiative of schools 
officials. Regardless of the myriad motivations (ethical or otherwise) of school officials, the 
current system produces results best described as institutional racism. The current situation 
therefore represents a much greater injustice than anything that could result from the reforms 
discussed here. 

A true “individualized education plan" for a disabled child means that the child’s parents 
should have input not only about what the plan will be, but also in which service providers 
will execute the plan. An individualized plan can be entirely meaningless if the school 
district does not provide the proper resources, staff and effort called for in the plan. As a 
monopoly provider of services, any or all of these things are often lacking in public schools. 
The Manhattan Institute study demonstrates that when provided choice, the parents of special 
needs parents believe that their children are much better served. 

Conclusion: Strong Action Required to Fix Special Education 

Lawmakers should vigorously pursue remedies to the over-enrollment of students in special 
education. The possible causes of misidentification include perverse financial incentives, the 
avoidance of standardized testing, the misuse of special education as remedial education, and 
segregationist impulses. It is clear that the problem is a deep-seated feature of public 
education. A program like the McKay Scholarship Program in Florida, making every 
disabled child in the state eligible to take the entirety of the funds spent on their education to 
a public or private school of their choice, would have two beneficial effects. First, Arizona’s 
disabled children would be far closer to enjoying the benefits of an “individualized education 
plan" by having the opportunity to choose the provider of their educational services. Second, 
public school administrators would have a powerful incentive to improve the accuracy of the 
disability assessment process, and to address the inadequacies of the regular education 
process often leading to incorrect diagnoses. Public school officials commonly complain 
about not having enough money to educate special needs children, so it seems unlikely that 



Statements 


55 


they could complain about parents taking their children and their (inadequate) funding 
elsewhere. 

Three possible remedies exist: changing the state's special education funding formula, 
instituting universal screening for the identification process, and creating a parental choice 
program for children with disabilities. These options do not represent mutually exclusive 
courses. In fact, lawmakers should be implementing all of them. " 

Consider the improvement such a system would represent. Today, the vast majority of 
special education students remain in public schools often unresponsive to their needs and 
desires. The legal expenses of suits by parents strain district budgets. A recent study 
described current special education system is a complex maze in which districts spend more 
time filing paperwork to avoid lawsuits than providing the sendees children need.' 1 

Today's system uses vague definitions for certain disabilities applied in a racially biased 
fashion. A system of universal screening would test all students at an early age and attempt to 
remediate reading deficiencies before they develop into conditions easilv mistaken for a 
disability.' - Such a program of intervention could make a profound difference in the 
academic careers and lives of Arizona children. It could also save Arizona school districts 
millions of dollars in compliance costs- especially for children labeled as having a specific 
learning disability. Although a program of universal screening would require the reallocation 
of district resources, the medical research strongly suggests that such reallocation would pay 
large dividends in the form of getting children out of the special education track 
(inappropriate for many) and into general curriculum classrooms. 

Finally, children in public school special education programs deserve options in determining 
who will provide the educational services their children need. The current system focuses too 
much on the needs of sen ice providers in a variety of ways. In the struggle to protect 
themselves from lawsuits, raise standardized test scores, and gain additional resources for the 
school system, school officials all too often lose sight of the interests of children. 


30 Rotherham and Mead suggest that both moving to a neutral placement funding formula and establishing a 
per-student funding amount for a McKay Scholarship could be administratively cumbersome. For states already 
emploving a per-pupil funding arraignment (including .Arizona and 34 other states) however, it would be 
feasible to keep the current formulas for determining the value of individual McKay Scholarships while moving 
to a lump-sum approach for the funding of school districts. Children transferring under the McKay Program 
would have a value assigned to their voucher according to the seventy of their disability, and state officials 
could deduct the appropriate amount from funds provided to of school district. See Andrew J. Rotherham and 
Sara Mead. “Think Twice: Special Education Vouchers are not Alright." Progressive Policy Institute. June 25. 
2003. http: wvvvv.ppionline.org ppi ci.cfm?knlgAreaID=l 10&subsecID=900030&contentID=251810. 

31 Mane Gryphon and David Salisbury. "Escaping IDEA: Freeing Parents. Teachers and Students through 
Deregulation and Choice." Cato Institute. July 2002. www.cato.org pubs pas pa444.pdf. 

32 See G. Reid Lyon. Jack M. Fletcher. Sally E. Shaywitz. Bennett A. Saywitz. Joesph K. Torgesen. Frank B. 
Wood. .Anne Schulte, and Richard Olson. "Rethinking Learning Disabilities.” in Chester Finn et al. (eds.). 
Rethinking Special Education for a New Century' for a New Century. (Washington D.C.: Thomas B. Fordham 
Foundation. 2001): 259-288. 




56 


Minorities in Special Education 


A program like Florida's McKay Scholarship Program improves the bargaining position of 
parents with disabled children. Parents can ensure that their children are being properly 
served seek services elsewhere. School districts would undoubtedly become more responsive 
to the ne^ds of special education children. Arizona lawmakers created such a program in 
2006. At the time of this writing, it remains in the early stages of adoption and 
implementation. Arizona lawmakers have yet to take action on changing the special 
education funding formula, or in requiring universal screening and remediation. 

Regardless of what motivates school officials to place students inappropriately in special 
education- whether the mistaken attempt to use special education as a remedial program, 
standardized test gaming, financial incentives, segregationist impulses, the bigotry of low 
expectations—Arizona's public school students deserve much better. School officials should 
put a possibly life-altering label on a child only based on solid scientific evidence. School 
districts should be clearly notify parents of their right to an outside evaluation, and parents 
with children receiving special education services should have as much choice as possible 
concerning who provides the service. Such reforms would require profound changes in the 
operating procedures of many Arizona school districts, but Arizona's children- particularly 
Arizona’s minority children- would benefit enormously. 

IDEA remains a landmark piece of civil rights legislation, effectively abolishing the formerly 
widespread practice by public schools of refusing to serve children with disabilities. In 1973, 
estimates hold that public schools denied as many as one million students access to public 
schools due to disability." Such discrimination offends basic notions of equality and 
lawmakers have deservedly cast it onto the ash-heap of history- where it must remain. 

We cannot however continue to tolerate a profoundly unscientific and biased system of 
special education identification and delivery. Both the federal and state governments can and 
should do more to improve the scientific rigor of the diagnosis process. Both the federal and 
state governments can do more to remove perverse incentives to label children. Lawmakers 
across the country should pursue such reforms with dispatch. 


' ' Hearings before the Select Subcommittee on Education of the Committee on Education and Labor, 93d 
Cong., 1st sess., 1973. Cited in Wade F. Horn and Douglas Tynan, “Time to Make Special Education ‘Special’ 
Again,” in Chester E. Finn, Jr„ Andrew J. Rotherham and Charles Hokanson (eds.) Rethinking Special 
Education for a New Century. Publication of the Thomas B. Fordham Foundation and the Progressive Policy 
Institute, available on the internet at http://www.edexcellence.net/foundation/topic/topic.cfm?topic_id=15. 




Statements 


57 


Daniel J. Reschly: “Minority Special Education Disproportionality: 
Findings and Misconceptions” 

Several misconceptions undermine accurate analyses of minority representation in special 
education. Solutions depend on accurate analyses of the disproportionality phenomena. In 
this testimony I will attempt to present as efficiently as possible critical facts concerning 
disproportionality and. on the basis of those facts, recommend solutions with varying degrees 
of potential effectiveness. 

Before presenting what I consider to be disproportionality misconceptions and facts, let me 
be very clear that I believe that the current levels of disproportionality should be addressed 
and improved. To make a long argument very short, inappropriate special education 
participation harms students and diminishes educational attainment and career opportunities. 

NRC Panel on .Minority Representation (Donovan & Cross, 2002) 

Disproportionate representation does not have a simple cause or a simple solution. The 
National Research Council Panel on Minor it}' Students in Special and Gifted Education 
(Donovan & Cross. 2002) concluded that multiple causative factors are implicated in over¬ 
representation. The causative factors were grouped into four broad areas. Biological. Social. 
School, and Special Education. Examples of each are described below. 

Biological Bases: A wide variety' of subtle and not so subtle conditions and factors 
produce greater risk for disability- identification in economically disadvantaged 
minority children and youth. I stress that the major influence is poverty, not minority 
status as such. 

These factors and conditions are largely related to poverty circumstances. Some of 
the influences with known deleterious effects are greater likelihood of poor prenatal 
health care, pregnancies and births at very young ages, premature birth, low birth 
weight for gestational age. exposure to toxins during pregnancy such as tobacco, 
alcohol, and drugs, poor pre- and post-natal nutrition, exposure to environmental 
toxins such as lead, preventable childhood diseases, and physical abuse and neglect. 

In most cases mild or temporary' exposure to any single factor has little identifiable 
effect. Serious effects are associated with high levels of exposure to single factors 
such as alcohol, chronic exposure, and exposure to multiple factors simultaneously. 

It is important to note that these risk factors increase the likelihood of disability status 
during childhood and adult years. They do not. with a few exceptions, directly cause 
disabilities for most persons who experience one or more risk factors. It is crucial to 
remember that the vast majority of persons from poverty circumstances have no 
identifiable biological disorders predictive of disability status. 

Social Bases: A variety of poverty-related social factors increase risk for disabilities 
among children and youth. These factors probably, but arguably, constitute the largest 



58 


Minorities in Special Education 


influence on differential disability identification across US racial-ethnic groups. The 
social factors include the intellectual stimulation in the home, language models, 
intellectual and behavioral preparation for schooling, parenting resources and quality 
of child care. 

General Education Influences: The NRC Panel identified several potential poverty- 
related general education influences on disability identification including greater 
likelihood of inadequate resources, teachers with fewer qualifications and experience, 
poor instruction in basic reading and math, inadequate classroom organization and 
behavior management, and peer pressure to not excel academically. 

Special Education Influences: Current policies and practices in special education 
also contribute to minority over-representation. Some of the practices implicated by 
the NRC Panel were non-functional eligibility evaluations that are not closely related 
to the reasons for referral or to the development of effective special education 
treatments, greater identification of minority students in special education categories 
with greater stigma (mental retardation and emotional disturbance), excessive 
placement of minority students in largely segregated special education classes with 
little or ineffective presentation of the general education curriculum, and little 
emphasis in special education on intense instruction and exiting programs. 

NRC Panel Recommendations 

The NRC Panel forwarded recommendations for changes in policies and practices relevant to 
each of the four broad bases or influences on minority over-representation in special 
education. A brief summary of these recommendations follows. 

1. Improve the availability and quality of health and nutrition for families in poverty 
along with intensified public campaigns to discourage behaviors related to risk status 
(e.g., alcohol). 

2. Increase pre-school support for families in poverty circumstances with targeted 
health, cognitive, and behavior interventions for the most vulnerable children and 
families. Early interventions have a documented positive effect on reducing poverty- 
related minority over-representation in special education. 

3. Establish early universal screening for academic and behavior problems coupled with 
intense early interventions in academics and behavior. Specifically, schools must 
ensure implementation of scientifically-based reading instruction and effective 
classroom organization and behavior management for all children and youth. States 
and school districts must do more to ensure that the best teachers are assigned to the 
students with the greatest needs, reversing current patterns of teacher distribution. 

4. Implement what has become to be known as response to intervention to ensure that all 
children and youth experience the benefits of more intense instruction and behavioral 
interventions prior to consideration for referral for special education. 

5. Change special education from a disability-based placement system to a set of 
services delivered in natural environments to support students with difficulties in 
meeting the general education curriculum and school behavioral requirements. 



Statements 


59 


6. Focus special education services as a resource to general education, based on 
scientifically-based interventions delivered through the problem solving steps of 
defining concerns behaviorally, gathering baseline data, analyzing conditions related 
to the problem (including prior knowledge), selecting interventions matched to the 
problem and conditions, implementing the interventions with good fidelity, and 
progress monitoring with changes in interventions that are not achieving goals. A 
large body of scientific literature confirms the effectiveness of problem solving and 
response to intervention processes with minority and majority children. 

As noted by a former Director of the US Department of Education Office for Civil Rights, 
“The more special education becomes not a place, but an educational process, the less 
interested we will be from a civil rights perspective. In many places special education has 
become a segregated setting, without access to quality, high standards education. Our 
interest will fade when special education and regular education have gotten together, and are 
all about the same thing, which is high standards education.” (Peelan, 1995. p. 6) 

Misconceptions and Facts in Minority Over-representation 

1. Misconception: All minority group students are over-represented in special education. 

Fact: Special education representation varies significantly by group. Some groups are 
overrepresented (American Indian and African-American), one group markedly 
underrepresented (Asian/Pacific Islander), and two groups approximately proportionally 
represented (Hispanic and white) (See Table 1). Although the IDEA (2004) statute refers 
to disproportionality, in fact, little or not attention is paid to under-representation. The 
degree of Asian-Pacific Islander under-representation is actually greater than the over¬ 
representation of any group. 

2. Misconception: Disproportionality statistics are simple and easily interpreted. 

Fact: Disproportionality statistics are frequently misinterpreted. Consider this true 
example. 

■ African-American students constitute 14.9% of the general population age 6-21, 
however, 

■ 33% of the students diagnosed in the category of mental retardation are African- 
American. 

■ Given these facts, what per cent of African-American students are diagnosed as 
mentally retarded and placed in special education 

• 1 % 

• 2 % 

• 4% 

• 8 % 

• 16% 

• 32% 

■ The actual per cent of African American students diagnosed with mental 
retardation and placed in special education is 1.7% 




60 


Minorities in Special Education 


■ The preferred statistics for disproportionalitv analyses are the risk, risk ratio and, 
with small numbers in comparison groups, the weighted and alternative risk 
ratios. (Bollmer. Bethel Garrison-Mogren, & Braun, 2007; Westat Task Force, 
2004). 

■ Risk refers to the proportion of the overall population that is in special education. 
The risk of mental retardation (MR) and special education placement is found by 

• See data in Table 1: 

167,357 The number of African Americans in the MR category 

9.828.925 The total number of African Americans age 6-21 in 
population 

■ MR Risk for African-American students is 1.70%, meaning that 1.7% of all 
African Americans age 6-21 are classified in MR and placed in special education. 

■ The Risk and Composition statistics are often confused. Composition refers to the 
make-up of some category or population. 

• For example, in the general US population age 6-21 of 65.902.976 
persons, there are 9,828.925 persons of African origin. African Americans 
constitute 14.91 percent of the general population of persons age 6-21, so 
the composition of the US population in this age group is about 15% 
African-American. 

• The composition of special education in the category of mental retardation 
is determined by 

167,357 Total number of African-American students in MR 

511.041 Total number of all students in the category of MR 
= 32.75% 

• That is, of the persons age 6-21 in MR. about one-third are African- 
American. It doe NOT mean that about one-third of African Americans 
age 6-21 are in MR. 

• Unfortunately, many persons including most professionals in education 
and psychology confuse the risk and composition statistics leading to 
entirely erroneous stereotypes suggesting that large proportions of 
minority students are in special education. For example, many persons 
assume that the composition statistic is the actual risk leading them to 
believe that one-third of African-American students are classified as MR 
and placed in special education when, in fact, the actual proportion is 
1.7%. 

• African-Americans are significantly over-represented in the special 
education category of MR. but only a small proportion of African- 
Americans age 6-21 are in special education in the category of MR. 





Statements 


61 


3. Misconception: Large proportions of minority students are in special education. 

Fact: The overwhelming proportion of all minority and majority groups are in general 
education programs. Specifically, the proportions of each group in general education are. 
American Indian Alaskan Native (85°o). Asian-Pacific Islander (95%). African-American 
(87%). Hispanic (91%) and white (91%). 

■ Representation varies significantly by group (please refer to the risk column for 
each group in the tables reflecting representation across all 13 disabilities 
recognized in IDEA. Learning Disabilities, Mental Retardation. Emotional 
Disturbance, and Other Health Impaired. 

4. Misconception: Accurate generalizations to states and districts can be made from 
national representation data. 

Fact: Representation patterns vary significantly between states and between districts 
within states. National disproportionality statistics like those in the attached table cannot 
be generalized to states and local school districts (Donovan & Cross. 2002). 

5. Misconception: Equal special education representation across groups should be 
expected. 

Fact: Equal representation is almost impossible to attain for a variety of reasons. A more 
reasonable standard is reducing over-representation due to low achievement and 
behavioral problems through prevention and effective interventions and ensuring that 
educational programs produce significant positive results. 

6. Misconception: The IDEA statute requires equal representation by group in special 
education categories and placements. 

Fact: The IDEA statute requires, " policies and procedures designed to prevent the 
inappropriate overidentification or disproportionate representation by race and ethnicity 
of children as children with disabilities, including children with disabilities with a 
particular impairment described in Section 602(3). [612(a)(24 

■ The statute emphasizes inappropriate identification and requires reporting of 
representation data by group by disability and placement option. Placement option 
is the amount of time each day outside of the general education classroom. 

■ The IDEA statute requires revisions of policies and procedures if “significant" 
disproportionality exists. As noted earlier, the legal concern to date has been with 
over-representation, not disproportionality per se or w ith under-representation. 

• No definition of “significant” appears in the IDEA statute or regulations. 

• The states can determine at their discretion the statistical method to 
analyze representation statistics and the criteria for “significant" 
disproportionality. States were first required to report this information to 
the U. S. Office of Special Education Programs (OSEP) in 2006. 

• OSEP does not have the authority to direct states toward a specific 
method to analyze disproportionality statistics or a criterion(ia) for what 
level of disproportionality would be “significant." 



62 


Minorities in Special Education 


• States use a wide range of statistical methods to analyze 
disproportionality, some clearly superior to others. 

• States generally have adopted what I consider to be excessively lenient 
criteria to define significant disproportionality. The state criteria 
reported to OSEP in 2006 varied from a risk ratio of 1.5 to over 3.0. The 
most frequently adopted criterion was 3.0, meaning that a group would 
have to be represented at three or more times the rate for other groups in 
order for the state to regard the disproportionality as “significant." 

• The current IDEA provisions regarding disproportionality are likely to 
have little effect UNLESS greater rigor and consistency is established in 
determining significant disproportionality. 

7. Misconception: Discrimination in special education referral and eligibility evaluations 
accounts for minority disproportionality in special education. 

Fact: Little evidence of discrimination in special education referral and evaluation 
procedures has been identified in studies involving direct comparisons of race/ethnic 
groups (Hosp & Reschly, 2002; Reschly & Kicklighter, 1985; Reschly, Kicklighter, & 
McKee, 1988a, 1988b, 1988c; Reschly & Ward, 1991). 

■ Quantitative studies involving direct comparisons of minority and majority 
student referrals, evaluations, individualized educational programs, and placement 
decisions find little or not evidence of discrimination. 

• The clear trend in these studies is that minority students at the same 
stages of the special education process, from referral to placement, have 
greater needs than comparable majority students at the same stages. For 
example, the level of failure in general education to prompt a teacher 
appears to be greater for minority than majority students. 

■ Qualitative studies focusing on a single case or a small number of cases involving 
only minority students in the special education process generally report 
questionable and sometimes clearly inappropriate practices (add cites). 

• No comparison with a majority student control group is conducted in the 
qualitative studies making the results difficult to interpret. Specifically, 
for the poor practices to be regarded as discriminatory on a race or 
ethnic basis they would have to occur more frequently with the minority 
than majority group. If poor practices occur with equal frequency in 
minority-majority comparisons, then there is no discrimination as such, 
only poor practices. The latter appears to be the case in studies with 
comparison groups (Reschly et al., 1988b; Reschly & Ward, 1991). 

• Qualitative studies of minority participation in special education produce 
equivocal results regarding the existence of discrimination. 



Statements 


63 


8. Misconception: The minority students who are placed in special education were doing 
adequately in general education prior to an inappropriate referral. 

Fact: Studies of the general education performance of minority students referred for and 
placed in special education indicate significant educational achievement problems, often 
aggravated by challenging behaviors that existed for two or more years prior to referral. 

■ Studies cited previously indicate greater, not lesser need for minority than 
majority students referred, evaluated, and placed in special education. 

■ Special education eligibility evaluations likely reduce rather than increase 
minority 7 special education identification and placement (Hosp & Reschly, 2003). 

■ Several general education interventions typically are attempted prior to referral, 
equally for minority and majority students. 

■ Many of these interventions are not grounded in best practices and few are 
rigorously implemented and evaluated. 

9. Misconception: Changes in special education policy and practices have the greatest 
potential for prevention of minority over-representation. 

Fact: Special education referral, eligibility evaluation, and placement are the 
culminations of several years of failure in general education. Prevention must focus on 
improving general education outcomes for minority students, particularly for American 
Indians/Alaskan Natives, African-Americans, and Hispanics. 

■ Low achievement levels especially in reading contribute to minority 
representation in special education. From 70% to 89% of all referrals to special 
education implicate poor reading as a first or second reason for the referral. Data 
in Figure 1 show reading levels by group at the 4th grade level. 

■ Reading levels at the 4th grade level vary significantly by group (See Figure 1). 
The proportions of students reading below the basic level in 4th grade are 
African-American (54%), Hispanic (51%). American Indian/Alaskan Native 
(49%). 

■ Reading is increasingly important in 4th grade and beyond as the school 
curriculum increasingly requires students to read to learn. 

■ Reading at a below basic level at 4th grade and beyond is predictive of school 
failure in subjects requiring reading, special education referral, non-completion of 
high school and post-secondary education, and poor career attainment. 

■ Reading instruction in US schools needs to be improved significantly to produce 
better educational outcomes for all groups, particularly for several minority 
groups (Snow, Bums, & Griffin, 1998; National Reading Panel, 2000). 



64 


Minorities in Special Education 


10. Misconception: Little is known about prevention over-representation in special 
education. 

Fact: The National Research Council Panel on Minority Representation in Special and 
Gifted Education (Donovan & Cross) stressed a range of interventions that have proven 
effects or are likely to reduce minority special education representation. 

■ The strongest conclusion of the panel was. There is substantial evidence with 
regard to both behavior and achievement that early identification and 
intervention is more effective than later identification and intervention 

More to follow 

References 

Bollmer, J, Bethel, J., Garrison-Mogren, R., & Braun, M. (2007). Using the risk ratio to 
assess racial/ethnic disproportionality in special education at the school level. Journal of 
Special Education, 41, 186-198. 

Donovan, M. S.. & Cross, C. T. (2002). Minority students in special and gifted education. 
Washington, DC: National Academy Press. 

Harry, B., & Anderson, M. G. (1994). The disproportionate placement of African-American 
males in special education programs: A critique of the process. Journal of Negro Education , 
63, 602-619. 

Hosp, J.L., & Reschly D.J. (2002). Predictors of restrictiveness of placement for African- 
American and Caucasian students. Exceptional Children . 68, 225-238. 

Hosp, J.L., & Reschly, D.J. (2003). Referral rates for intervention or assessment: A meta¬ 
analysis of racial differences. Journal of Special Education , 37 . 67-80. 

Reschly, D.J. & Kicklighter, R.J. (1985). Comparison of black and w bite EMR students 
from Marshall vs. Georgia. Paper presented at the Annual Convention of the American 
Psychological Association, Los Angeles, ERIC ED 271 911. 

Reschly, D.J.. Kicklighter, R.H., & McKee, P. (1988a). Recent placement litigation. Part I: 
Regular education grouping: Comparison of Marshall (1984, 1985) and Hobson (1967. 
1969). School Psychology Review , 17 , 7-19. 

Reschly, D.J., Kicklighter, R.H., & McKee, P. (1988a). Recent placement litigation Part II, 
Minority MMR overrepresentation: Comparison of Larrv P. (1979, 1984, 1986) with 
Marshall (1984. 1985) and S-l (1986). School Psychology Review , 17, 20-36. 

Reschly, D.J.. Kicklighter, R.H., & McKee, P. (1988a). Recent placement litigation. Part III: 
Analysis of differences in Larrv P„ Marshall , and SA and implications for future practices. 
School Psychology Review . 17,37-48. 

Reschly, D.J. & Ward, S.M. (1991). Use of adaptive measures and overrepresentation of 
black students in programs for students with mild mental retardation. American Journal of 
Mental Retardation . 96 , 257-268. 

















Statements 


65 


Figure 1 

The Nation’s Report Card: Reading 2007. NAEP, US Dept of Education, Table A-9, pp. 54-55 


C 

0 

U 

L_ 

0 

Q. 


100 % 
90% 
80% 
70% 
60% 
50% 
40% 
30% 
20 % 
10 % 
0 % 


2007 NAEP Reading 4th Grade 








: ■ 

, 


Black Latino 


Native 

Am 





White Asian/PI 


□ Profic 
O Basic 

□ < Basic 


Group 



2006 Age 6-21 All Disabilities By Group 

N 

Risk Rel Risk 

Comp 

Am/lnd 

91,492 

14.35% 

1.59 

1.53% 

A-PI 

131,099 

4.74% 

0.51 

2.19% 

Black 

1,231,922 

12.53% 

1.48 

20.60% 

Hispanic 

1,034,137 

8.48% 

0.92 

17.27% 

White 

3,498,007 

8.64% 

1.13 

58.43% 

Total 

5.986,657 

9.08% 


100.02% 



2006 Age 6-21 Learning Disabilities By Group 

N 

Risk Rel Risk 

Comp 

Am/lnd 

46,093 

7.23% 

1.81 

1.74% 

A-PI 

45,065 

1.63% 

0.39 

1.70% 

Black 

544,761 

5.54% 

1.47 

20.52% 

Hispanic 

563,382 

4.62% 

1.19 

21.22% 

White 

1.455,378 

3.60% 

0.76 

54.82% 

Total 

2,654.679 

4.03% 


100.00% 

























































































































66 


Minorities in Special Education 



2006 Age 6-21 Mental Retardation B\ 

/ Group 

MR 

MR 

MR 

MR 

N 

Risk 

Rel Risk 

Comp 

Am/lnd 

6,530 

1.02% 

1.32 

1.28% 

A-PI 

10,758 

0.39% 

0.49 

2.10% 

Black 

167,357 

1.70% 

2.78 

32.75% 

Hispanic 

71,956 

0.59% 

0.72 

14.08% 

White 

254,440 

0.63% 

0.62 

49.79% 

Total 

511,041 

0.77% 


100.00% 



2006 Age 6-21 Emotional Disturbance By Group 

ED 

ED 

ED 

ED 

N 

Risk 

Rel Risk 

Comp 

Am/lnd 

7,159 

1.12% 

1.62 

1.56% 

A-PI 

5,128 

0.19% 

0.26 

1.12% 

Black 

131,773 

1.34% 

2.31 

28.79% 

Hispanic 

50,756 

0.42% 

0.55 

11.09% 

White 

262,917 

0.65% 

0.85 

57.44% 

Total 

457,733 

0.70% 


100.00% 


Group 

2006 Estimated Population 

Population Age 6-21 by Group 

N 

Per Cent 

Am Ind 

637,687 

0.97 

A-PI 

2,766,281 

4.2 

Black 

9,828,925 

14.91 

Hispanic 

12,196,634 

18.51 

White 

40,473,449 

61.41 

Total 

65,902,976 

100 


Group 

2006 Ac 

e 6-21 Other Health Impaired B} 

/ Group 

OHI 

OHI 

OHI 

OHI 

N 

Risk 

Rel Risk 

Comp 

Am Ind 

7,426 

1.12% 

1.29 

1.25% 

A-PI 

8,862 

0.32% 

0.34 

1.49% 

Black 

103,456 

1.05% 

1.2 

17.38% 

Hispanic 

58,631 

0.48% 

0.48 

9.85% 

White 

416,698 

1.03% 

1.47 

70.02% 

Total 

595,073 

0.90% 


99.99% 


Rev 11-30-07 























































Statements 


67 


Daniel J. Reschly: “Minority Special Education Disproportionality: 
Findings and Misconceptions” PowerPoint Presentation 


Special Education Disproportionality 
Prevention and Early Intervention 

Daniel J. Reschly 
Vanderbilt University 

dan.reschly@vahoo,com 

Testimony 

US Civil Rights Commission 
December 3, 2007 


Rescniy 


1 


Disproportionality: Old Reactions 

□ Here no evil, see no evil 

□ Ignore the problem by not knowing 

□ OR 

When in Danger 
When in Doubt 
Run in Circles 
Yell and Shout 


Rescniy 


2 












68 


Minorities in Special Education 


Legal Requirements 

□ Statute 

□ Regulations 

□ Litigation 

□ Interaction between litigation and 
legislation 

□ Education of the Handicapped Act 
([EHA] 1975, 1977) 

□ IDEA (1991, 1997, 1999, 2004) 


Reschly 


3 


IDEA 1997, 1999, 2004 re: 

Disproportionate Representation 

—... 

□ §300.755 Disproportionality. 

□ (a) General. Each State . shall provide for 

the collection and examination of data to 
determine if significant disproportionality based on 
race is occurring in the State .- 

□ (1) The identification of children as children with 
disabilities , including the identification of children 
as children with disabilities in accordance with a 

particular impairment described in section 
602(3) of the Act; and THAT IS, CATEGORY 

□ (2) The placement in particular educational 
settings of these children. THAT IS, LRE Profile 


Reschly 


4 










Statements 


69 


IDEA 1997, 1999, 2004 re: 

Disproportionate Representation 

-- 

□ (b) Review and revision of policies, 

practices, and procedures. In the case of a 
determination of significant disproportionality 
with respect to the identification of children as 
children with disabilities, or the placement in 
particular educational settings of these 

children, ., the State . shall provide for the 

review and, if appropriate revision of the policies, 
procedures, and practices used in the 
identification or placement to ensure that the 
policies, procedures, and practices comply with 
the requirements of Part B of the Act. 

Reschly 5 


IDEA 2004 Statute: Additional 
Disproportionality Requirements 

□ Require any LEA identified under Section 
618(d)(1) to reserve the maximum amount of 
funds under Section 613(f) to provide 
comprehensive coordinated early intervening 
services to serve children in the LEA, particularly 
children in those groups that were significantly 
overidentified under Section 618(d)(1); and 

□ Require the LEA to publicly report on the revision 
of policies, practices, and procedures described 
under Section 618(d)(1)(A). 

□ Focused monitoring---Disproportionality listed as 
one of a small number of areas 


Reschly 


6 
















70 


Minorities in Special Education 


Question: What Constitutes 
"Significant" Disproportionality 

□ No definition in statute or regulations 

□ OSEP cannot provide guidance to 
states 

□ State discretion 

□ 2006 Reports: 

» Wide variations 
■ Excessively lenient criteria 


Reschly 


7 


Facts: Current Disproportionality 


□ African-Am students constitute about 15% 
of the general population age 6-21 

□ Af-Am students comprise 33% of the 
students in MR in Sp Ed 

□ What per cent of Af-Am in MR/Sp Ed 



1% 

2% 

ii 

4% 

8% 

?■ 

16% 

32% 


□ Choose the best answer. 


Reschly 


8 












Statements 


71 


What Statistic for 

Disproportionality? 

^ --- 

□ Risk: Percent of total group in sp ed 
category 

^ 100 white in MR out of 2000 white 
students in the student population, 
100^2000 = 5% 

■ Risk=5% 

□ Composition: Percent of sp ed category 
by each group 

■ Total of 150 students in MR 

n White composition of MR, 100 -r 150 = 67% 


Reschly 


9 


Illustration of Risk and Composition 

□ Consider gender and teaching 

□ Composition of educators by gender 
is heavily female, >80% 

□ "Risk" of being an educator for 
women is <1% 

□ Likewise with racial/ethnic group and 
special education representation 

■ Composition sometimes appears large 

■ Risk is relatively small 


Reschly 


10 













72 


Minorities in Special Education 


Comparing Risk Statistics Across Groups 

□ Relative Risk, ratio of two risk indices 

□ Useful for determining the severity of 
disproportionality 

□ Two methods 

■ Risk of minority group to risk of white 
group 

■ Risk of each group compared to the 
combined risk of the other groups 


Reschly 


11 


Disproportionality Data and Facts 

2006 All Disabilities, age 6-21 US 

Group %-sch aae Rel. Risk 

Native Am. Indian 14.3% 1.6 times 

African-American 12.5% 1.5 times 

White 8.6% 1.1 times 

Hispanic 8.5% 0.9 times 

Asian Pac-Islander 4.7% 0.5 times 


As a per cent of the population age 6-21 


Reschly 


12 

















Statements 


73 


Problematic Categories: MR 

□ Composition: African students constitute 15% of 
the US student population, but 33% of the US 
MR population is African American. 

□ Risk: Approximately 1.7% of African American 
students are classified as MR. The rate for white 
students is 0.6% 

□ The relative risk for MR for African American and 
white students is =2.8 

□ African American students are approximately 2.8 

times more likely to be in MR than students in 
other groups........ 

Reschly 13 


Problem Categories: ED 


Composition: 28.8% of Students with ED 
are African American vs. 15% Af Am in 
general student population 

Risk: 1.3% of African-American Students 
are in ED vs. 0.7% of White Students 

Relative Risk Ratio: Af-Am rate is 2.3 
times the rate for all other groups 

No other group overrepresented in ED 


Reschly 


14 











74 


Minorities in Special Education 


Problem Categories: LD 

Composition: About 1.8% of Students 
with LD are Native American Indian vs. 
1.0% of Indian Students in the General 
Population 

Risk: 7.3% of Indian students are in LD 
vs. 3.6% of White Students 

Relative Risk: Indians are 1.8 times more 
likely to be in LD than students in other 
groups 


Reschly 


15 


Prevalence and Disproportionality in 

SEAs and LEAs 

□ Enormous variations across SEAs 

□ Enormous variations across LEAs 
within a state 

□ Variations are not easily explained 

□ Failures to explain prevalence 
variations in LD and ED 


Reschly 


16 









Statements 


75 


Criteria for Significant 
□^proportionality 

□ No precise numerical guidelines (Grutter 

and Gratz Supreme Court Cases) 

□ Reschly Tenative Guidelines: 

* Relative Risk of (RR) 1.0 to 1.2 
acceptable 

* RR of 1.2 to 1.5 moderate, questionable, 
more study 

■ RR of 1.5-2.0 Clearly significant 

■ RR > 2.0 Highly significant, scrutiny 
should follow 

Reschly 17 


Disproportionality Occurs In High Incidence Disabilities 



American Asian PI Black Hispanic White National 

Indian 


High 

Incidence 

Low 

Incidence 

Ail 

Disabilities 


High Incidence = Speech/language, SLD, MR and ED 


Low Incidence = The remaining 9 IDEA categories 


Reschly 


18 



















76 


Minorities in Special Education 


Is Sp Ed Disproportionality 
Restricted to the US? 

□ Overrepresentation of Roma in Czech 
Republic-City of Ostrava 

□ 51.5% of Roma in Special Schools vs. 

□ 2.4% of Non-Roma in Special Schools 

□ Relative risk for Roma was 21.5, i.e., 
Roma 21 times more likely to be 
classified as MR 


Reschly 19 


Expectations for Representation 

□ Should we expect equal representation? 

□ U.S. Courts: Competing ideas of fairness: 
Equal treatment vs. Equal results 

□ Sowell (1996) "worldwide study of 
multiethnic societies found "few, if any" 
which even approximated proportional 
representation of the different ethnic 
groups in different levels or sectors of the 
economy." (p. 372). 


Reschly 


20 











Statements 


77 


Other Disproportionality in U.S. 


Asian Americans are much less likely to 
be in special education. 

Asian Americans compared to whites 

i MR 1.18/0.64=1.84 white nearly two times 
higher 

i LD 6.02/2.23 = 2.70 white much higher 
i ED 0.91/0.26=3.50 white much higher 


Reschly 


21 


Gender Disproportionality 

s i ' ' —.— ______ 

□ Gender Ratios in ED, LD, and MR 

■ ED Male to Female is 4:1 

■ LD Male to Female is 2:1 

a MR Male to Female is 1.5:1 

□ Same gender ratios exist across all 
groups 


Reschly 


22 

















78 


Minorities in Special Education 


Other Disproportionality OCR 
Gender Data on ED 


90 



American Asian 

i PI Hispanic 

Black 

White 


Indian 






Reschly 



23 


Overrepresentation Issues 

□ National Academy of Sciences/National 
Research Council Panel Report 

■ http://www.nap.edu/catal og/ 10128.html 

□ Donovan, M. S., & Cross, C. T. (2002). 
Minority students in special and gifted 

education. Washington, DC: National 
Academy Press. 


Reschly 


24 










































































Statements 


79 


Causes of Overrepresentation 

——- 

□ Biological factors 

Social factors 

General education 
experiences 

□ Special education system 


Reschly 


25 


Do Biological Factors Contribute? 
Avoid Over-Generalizations!! 

Pre- and post-natal health care and nutrition 

Greater exposure to toxins 

Greater likelihood of pre-maturity, low birth 
weight 

Greater exposure to environmental toxins 

Greater likelihood of preventable childhood 
diseases and other illnesses/conditions 

Greater likelihood physical abuse and neglect 


Reschly 


26 











80 


Minorities in Special Education 


Do Social Factors Contribute 

□ Social Bases-Yes 

® Less supportive environments for 
language and cognitive development; 
poorer preparation for reading and 
academic achievement generally, less 
direct teaching 

□ Substantial Difference Exist at 
Kindergarten 


Reschly 


27 


Do Schooling Differences Contribute to 
Disproportionality? 


• Differences in Resources in Schools with 
High and Low Income Students 

• Differences in Teacher Education, 
Experience, and Training in High and Low 

• In Low Income Schools, Greater Need for 
Highly Systematic Instruction and Strong 
Classroom Organization/Behavior Mgmt 

• Kellam research re: classroom management 


Reschly 


28 











Statements 


81 


Role of Special Education 


• Policies that focus on disability-based treatment 
and placements 

• Practices that focus eligibility determination on 
factors largely unrelated to the precise referral 
concerns and effective treatments 

• Excessive use of separate placements, especially 
in MR and ED, categories with the most over¬ 
representation 

• Little emphasis on prevention or on intense 
interventions leading to sp ed exit 

Reschly 29 


NRC Recommendations 

□ Improve health care, etc. 

□ Increase pre-school interventions for the 

most vulnerable children and families 

□ Change general education to emphasize 

* More effective instruction and behavior 
interventions, especially in reading and math 

■ Universal early screening followed by intense 
early interventions for those at risk for 
educational failure 

« Equitable distribution of highly qualified teachers 


Reschly 


30 











82 


Minorities in Special Education 


The Nation's Report Card: Reading 2007. NCES, US DE 


NAEP 2007 4th Grade Reading 



Group 


□ Ad van 

□ Profic 
i Basic 

□ < Basic 


Data derived from TaBtS A-9, pp. 54-55 


THE ROANOKE TIMES 
Monday, September 20, 2004 



Some things d o not make sens e 



effect on 


5s ANIE KUOH-fMVIS 1 flw Tlrrsa; 

_ 35, a Bullitt Avenue resident, worries about the 

er unborn child from the sound of jackhammers. 






































































Statements 


83 


NRC Recommendations cont. 

□ Special Education 

■ Emphasize prevention through Response to 
Intervention 

■ Adopt problem solving practices with strong 
evidence of effectiveness 

a Reform special education to a set of services 
brought to students in general education 
rather than a place largely apart from the 
general education curriculum 

a Stress intense interventions and exit from 
special education. 


Reschly 


33 


Irony of Disproportionate 
Representation 

□ Special Education for SWD with Mild 
Disabilities (LD, Mild MR, ED) 

a Individualized educational programs with 
related services as needed, based on 
individual evaluation 

« Significantly greater expenditures 

■ Greater parent involvement 

■ Mandated annual review 
m Procedural safeguards 


Reschly 


34 















84 


Minorities in Special Education 


Irony of Disproportionate 
Representation cont. 

□ Why is disproportionate representation 
unacceptable? 

□ Overrepresentation per se? Consider Head 
Start and Title I 

□ Assumptions about special education 

* Stigma 

i Poor outcomes 

# Limited curriculum and career options 

i Often segregated programs (Mild MR & ED) 

□ Differences in sp ed: Suburbs vs Cities 


Reschly 


35 


Stigma Issues 

□ MR has greatest stigma 

* MR>ED>ADHD>LD>Normal (autism ??) 

□ Overrepresentation occurs in the 
categories with the greatest stigma 

□ IQ is especially problematic in views 
of minority scholars 

* Tie to racist interpretations of differences 
■ MR diagnosis and LD exclusions 


Reschly 


36 








Statements 


85 


Solutions to Overrepresentation 

C NRC Panel Report Major Conclusion 

" There is substantial evidence with 
regard to both behavior and 
achievement that early 
identification and intervention is 
more effective than later 
identification and intervention." 
Executive Summary, p. 5 


Resr'ly 


37 


Sense of Humor 

Three things that are real: God, human 
folly, and laughter; 

The first two are beyond our 
comprehension 

So we must do what we can with the 
third. John F. Kennedy 

Best wishes to you for a 
great holiday season 


Rescn:v 


38 













86 


Minorities in Special Education 


Hilary O. Shelton: “On the Overrepresentation of Racial and Ethnic 
Minority Children and Limited English Proficient Children in Special 
Education Classes” 

Good morning. My name is Hilary Shelton and I am the Director of the NAACP Washington 
Bureau. We are the federal public policy and national advocacy arm of our Nation's oldest, 
largest and most widely-recognized grassroots civil rights organization. 

The NAACP greatly appreciates the fact that the Commission has decided to look into the 
issue of the overrepresentation of racial and ethnic minority students and Limited English 
Proficient (LEP) students in special education classes throughout the country. The NAACP 
views this as a crucial civil rights and educational policy question. 

As all of the data indicates, racial and ethnic minority children, and specifically African 
American children, are placed into special education classes at vastly disproportionate rates. 
While there may be some disagreement about the precise disparity, and while the disparity 
may vary slightly based on region and in rural versus suburban versus urban school districts, 
there can be no question that this is a problem, and that the problem exists in all too many 
every school district in our Nation. 

If I may offer anecdotal evidence into the record as well, I would like to say that the 
misplacement of African Americans in special education programs is one of the topics that 
generates’ significant deeply held concerns at NAACP gatherings across the country. 
Whenever there is an NAACP-sponsored discussion about the quality of public education, 
the question of children being mis-placed in special education classes, and what can be done, 
always comes up from audience members. This has, sadly, been the case for decades and 
shows no sign of abating. 

One especially grave concern in special education is the overrepresentation of black males in 
disability categories such as “educationally mentally retarded” (EMR) or “emotionally or 
behaviorally disordered” (ED). Some mislabeled students need no special education services 
whatsoever. In my written testimony here, I have summarized several examples to illustrate 
the problem and responses. 

In my oral statement, however, I will focus less on whether or not there is a problem - most 
sensible people agree that there is — and more on the causes of this disparity as well as the 
impact this disparity has on the children and the families in question as well as whole 
communities, and our Nation. 

Rhode Island 

For FFY 2003, in response to a request by the Office of Special Education Programs, U.S. 
Department of Education, the State used the risk ratio to analyze data which indicated 
significant disproportionality. At the State level. White children were 6.07 times more likely 
than all other children to be identified as autistic. Black, Latino and Asian/Pacific Islander 
children were underrepresented in many disability categories: Asian/Pacific Islander children 



Statements 


87 


in 11 of 12 disability categories; Black children in 10 of 12 disability categories; and Latino 
children in 10 of the 12 disability categories. Black children were overrepresented in mental 
retardation and emotional disturbance, while Latino children were overrepresented in mental 
retardation. White children were overrepresented in 10 of 12 disability categories and 
underrepresented in mental retardation. American Indian/Alaska Native children were 
overrepresented in mental retardation, emotional disturbance and learning disabilities. 

FFY 2003 data indicated White, Black or Latino children with disabilities were approaching 
equal representation outside of the general education classroom less than 21% of the time. 
However. Black. Latino and American Indian Alaska Native children were still 
overrepresented outside of the general education classroom more than 60% of the time and in 
combined separate facilities (White children were underrepresented in this category). 

Using risk ratios for State-level analysis and weighted risk ratios for district level analysis, 
the Rhode Island Department of Education (RIDE) reported that the data indicated statewide 
underrepresentation occurred more than overrepresentation, while pockets of 
overrepresentation existed for some disability- categories and placements. Pockets of 
disproportionality also existed at the local levels. RIDE indicated that to address this 
disproportionality. it would continue to examine State and district policies and procedures for 
identifying students with disabilities for bias and will continue to provide support to districts 
for culturally competent, standards-based teaching. RIDE also promised to continue to 
provide guidance and professional development to districts on best practices for identifying 
and instructing English language learners who may also have disabilities and will incorporate 
district-level disproportionality analyses into its monitoring system. 

RIDE's goal language now indicates, among other things, that its policies, procedures and 
practices for identification and placement of children with disabilities will be non-biased and 
that where patterns of disproportionality are evident, the State will provide continued 
guidance, technical assistance and professional development on appropriate pre-referral 
intervention sendees, the selection and use of non-biased evaluation instruments and 
materials, the selection and use of nonbiased evaluation criteria, and placement in the least 
restrictive environment. The State of Rhode Island will also continue to collaborate with the 
University of Rhode Island to analyze State- and district-level disproportionality data, 
continue to enhance and streamline its data collection systems to improve accurate placement 
and race ethnicity reporting and will jointly examine other special education 
disproportionality data for future trends and themes. 

Missouri 

The Missouri Department of Elementary & Secondary Education (DESE) also provided data 
to the Office of Special Education Programs (OSEP). U.S. Department of Education. FY 
2003 data showed that Black children were 1.22 times more likely than all other children to 
receive special education and related sendees. DESE reported that while this was not 
significantly disproportionality, overrepresentation of Black children at the district level was 
part of the district-level analysis for monitoring. DESE further reported that 
underrepresentation was found for Latino , Asian and Native American children, but that this 



88 


Minorities in Special Education 


underrepresentation was not a focus area, due to the small percentage of both children with 
disabilities and all children in these racial/ethnic categories in Missouri. 

DESE reported that, after reviewing its statewide data, it was clear that the most significant 
areas of disproportionality were overrepresentation of Black children in special education 
and in disability categories of mental retardation (MR), emotional disturbance (ED) and 
specific learning disabilities (LD), in self-contained placements (outside the regular 
classroom more than 60 percent of the time), and in separate facilities. 1 DESE reported that 
other areas of disproportionality existed, but were either in racial/ethnic categories that 
represented less than three percent of Missouri’s child population or were in low-incidence 
disability or placement categories. 

The State indicated that its effort to address disproportionality fell under two areas: (1) 
technical assistance; and (2) corrective action. With regard to technical assistance, the State 
reported that, when special education consultants are working in districts with identified 
disproportionality, data analysis is required to include examination of the identified 
disproportionality and the policies, procedures and practices used in the identification and 
placement of children with disabilities to ensure consistency with special education 
regulations. If the review of the data indicates a need for revisions or additional training, 
DESE will use its State Improvement Grant to provide professional development. Also, 
efforts and effects for those districts (result of review, what revisions, if any, would be made) 
would be tracked. The State indicated, for example, that eight districts with identified 
disproportionality are currently working with special education consultants. DESE indicated 
that disproportionality information would be used as a factor in determining which districts 
would receive an on-site monitoring review. OSEP reviewed and accepted those State 
Strategies. 

With regard to the corrective action taken, the State’s monitoring data for FFY 2003 showed 
that two of six districts monitored were found out of compliance and that the noncompliance 
was being addressed through corrective action plans. The State explained that one of those 
agencies had an enrollment that was 95% White, and the agency had subsequently closed, so 
“any significant disproportionality disappeared.” There is no indication what the State did to 
analyze or remediate any harm that may have befallen such students as a result of the 
disproportionality. Nor is there any indication that OSEP required the State to do so. The 
State reported that in the other district, all principals had been trained in various special 
education topics, including eligibility and that a compliance supeivisor is working with the 
district to address disproportionality issues with them. DESE reported that corrective actions 
would include reviewing and, if necessary, revising policies and procedures in regards to 
identification and placement of students with disabilities. 

Oklahoma 

The Oklahoma State Department of Education (OSDE), using FFY 2003 data provided to 
OSEP, reported that Black children in Oklahoma were 2.55 times more likely than all other 


' “Separate facilities” includes public and private residential facilities, public and private schools for children 
with disabilities and home/hospital environments. 




Statements 


89 


children to receive special education and related serv ices in the disability category of mental 
retardation. OSEP instructed the State to provide it with “data, analysis and targets 
addressing significant disproportionality related to identification.” 2 

Arkansas 

For FF\ 2003, the Arkansas Department of Education reported to OSEP that: 

1 any district that reported 13.37 percent more Black children in special education 
than in general education was identified with possible disproportionality; 

■ in 2003-2004 Black children were twice as likely to be identified as having 
mental retardation as any other ethnic group in the State; 

■ the educational environment risk ratios revealed that in 2003-2004. Black children 
were four times more likely to be placed outside the regular classroom more than 
21% of the instructional day than any other raciaEethnic group; and 

■ Black children were also slightly over-identified in the disability category of 
specific learning disability, with a risk ratio of 1.07. 

The State reported strategies, proposed evidence of change, targets and timelines designed to 
ensure compliance as soon as possible, as required by OSEP's December 2004 letter. 
Strategies included: 1) continued review' of policies and procedures to determine if any 
might lead to disproportionate raciaEethnic representation in disability category or 
educational setting; 2) internal analysis of whether school choice and location of residential 
treatment facilities effect local education agency (LEA) disproportionality 7 ; and 3) 
incorporating a risk ratio analysis into the monitoring data for disability category, educational 
placement, graduation, dropout, and suspension/expulsion. 

Florida 

In OSEP's August 19, 2005 letter to the Florida Department of Education (FDE), OSEP 
noted that in August 2000 FDE and the Office for Civil Rights entered into a “partnership 
agreement" concerning the overrepresentation of Black children in the disability category of 
mental retardation (particularly educable mental handicapped) and a trend indicating the 
provision of special education and related services to Black children in more restrictive 
settings than for other raciaPethnic groups. FDE also noted an additional area of concern 
regarding the overrepresentation of Black children in the disability category of emotional 
disturbance. 

FDE's data showed that there was no change from previous years with regard to 
disproportionate representation. Additionally, improvement plans created through FDE's 
continuous improvement monitoring had little impact. FDE described plans, including 
convening a team of individuals to address disproportionate representation to determine if 
progress is being made on new referrals to special education. FDE also agreed to continue to 
review policies and procedures in the area of disproportionate representation in districts 
identified for continuous improvement monitoring in the area of disproportionate 


: This was to be provided in the State's Performance Plan, due December 2. 2005. 




90 


Minorities in Special Education 


representation to ensure that such policies, procedures and practices are non-biased. OSEP 
was to review the State’s data and analysis, due December 2, 2005, in this area. 

To be clear, we have discussed Rhode Island, Oklahoma, Missouri. Arkansas and Florida not 
to pick on these states (they have plenty of company) but to offer them as snapshots, if you 
will, of a significant national problem/’ 

Let me say at this point that there is no question that students of all racial and ethnic 
backgrounds who are eligible for special education may get important help such as tutoring, 
extra teacher attention and specialized instruction by teachers with specific training. Special 
education means sendees for children; it is not, at least in theory, a place where children are 
sent. It has been a long-standing goal of the NAACP to insure that all American children 
have access to adequate public education, once a child is determined eligible for special 
services, we then often struggle to ensure that the services they receive are appropriate and 
adequate. 

Individuals with disabilities, in addition, are often confronted with fear, prejudice and 
stigmatization. Students of color with disabilities, or who are perceived as having disabilities, 
are in double jeopardy of being discriminated against, on grounds of both race or national 
origin and disability. 

Having said this, we must, unfortunately, also note that special education has historically 
been used as a vehicle for discrimination against minorities. Soon after the Supreme Court's 
1954 decision in Brown v. Board of Education, the nation witnessed an increase in placement 
of minority students in separate special education classrooms. Since 1954, special education 
has been used by some teachers, school officials and in some instances school districts as a 
substitute for more blatant racial segregation, to segregate some students of color. 

Another cause of the problem of too many African American children being placed in special 
education which has been identified by people in education is the criteria being set by the 
teachers doing the initial referral. Too often, the teachers are sending children with 
behavioral problems or who are disruptive to be assessed for special education needs. This 
would also explain the high incidence of African American males being placed in special 
education. Often times, behavioral problems are indicators of other issues, which may or may 
not be addressed by special education classes. 

Once a student has been referred for an evaluation, they are often given a battery of tests, 
most of which have been developed by middle class educators and psychologists and are 
aimed at middle class students with different life experiences than many low-income, African 
American and inner city students. For instance, when shown a picture of an igloo and asked 


' Black identification for mental retardation is pronounced in the South, and in wealthier districts. Black 
children, especially males, were more likely to be labeled mentally retarded. Further, the process of 
identification and placement is rife with subjectivity, with subjective decisions creeping into all elements of the 
evaluation process, including whom to test, what test to administer, when to use alternative tests and how to 
interpret the results. Civil Rights Project, Racial Inequity in Special Education: Executive Summary for Federal 
Policy Makers 2 http://www.civilrightsproject.ucla.edu/research/specialedIDEA_paper02.php . 




Statements 


91 


to identify it. a child in Alaska may have no problem. A child who has spent his or her whole 
life in inner- city Miami, though, would be much less likelv to identify the structure. Does 
this lack of exposure to igloos qualify' the student for special education? 

The NAACP has the same concerns about IQ and aptitude tests as we do about the "high 
stakes" tests that have gained in popularity in the last decade. A standardized test, which 
assumes that all students have had the same or similar life experiences, is inappropriate in our 
Nation of diversity and cannot adequately assess intelligence or even learning ability. 

In addition to an attempt to segregate students by race or nationality and the inadequacies of 
determining who should be placed in special education programs that I have just discussed, 
there are a myriad of other reasons that school districts have been, and continue to fail whole 
segments of their students, a disparate number of whom are African American, by misplacing 
them in special education classes. The NAACP is committed to working with parents, local 
school districts, states, and the federal government to identify and eliminate all of these 
issues. 

I would like to take a minute now to address the second part of my testimony: what happens 
to the children who are erroneously placed in special education classes, and what are the 
implications for families, communities, and our Nation? 

First of all. we all need to acknowledge and agree that it is verv difficult for a child who has 
been placed in special education to get away from the "stigma" of that designation. Thus, 
children who are misplaced in special education are essentially trained to underachieve. And 
when they finish school, if they finish school, they are given a certificate of attendance as 
opposed to a high school diploma. 

And so you have a whole portion of our society, people who as children were misplaced in 
special education, who have been told again and again that they are different and inferior, 
who oftentimes lack training and do not even have a high school diploma, entenng our 
society. We have, by a large, condemned them to a life of menial, low income jobs. This in 
mm has ramifications for entire communities, communities that have historically been faced 
with challenges and denied opportunities, when a disproportionate number of us are 
misplaced on the special education track as children. And it is impossible to even imagine 
that we as a Nation are able to meet our full potential when so many are denied equal 
opportunity at such a young age. 

As I said earlier in my testimony, the NAACP is committed to working with students, 
parents, local school districts, states and the federal government to try to find a solution to the 
disparate number of African American and limited English proficient students who are 
misplaced in special education classes. 

The mix of solutions should include: ensuring accountability where disparities are 
significant: increasing federal oversight and enforcement: and ensuring that parents and 
students have a private right of action to seek judicial review for individuals and classes of 
complainants specific to racial disproportionality. 




92 


Minorities in Special Education 


There are additional concerns, as the misdiagnosis issue is but one dimension of a larger 
challenge related to race and special education. As suggested earlier, some children of color 
do need special education services. But they are more likely than Whites to be removed from 
regular education classrooms and put into resource rooms, substantially separate classes, or 
separate schools, where they commonly receive low quality services. The wrongful 
classification, segregation and poor servicing of students of color through special education 
denies equality of opportunity and has devastating results in communities throughout the 
country. 

Thank you again for the opportunity to share our preliminary thoughts on this important 
issue. We look forward to working with you on this important issue. 



Statements 


93 


Peter Zamora: “Minorities in Special Education” 

On behalf of the Mexican American Legal Defense and Educational Fund (MALDEF), I 
commend the Commission for investigating the misclassification of minorities in special 
education programs. Founded in 1968. MALDEF is the nation's leading Latino civil rights 
legal organization. MALDEF employs litigation, policy advocacy, and community education 
to improve educational opportunities for Latino students and families. 

My testimony today will focus upon the misclassification of English language learners 
(ELLs) in special education. MALDEF is particularly concerned with the academic outcomes 
of the nation's 5.5 million ELL students because nearly 80% of K-12 ELLs are Spanish¬ 
speaking Latinos. 1 2 3 4 5 6 ELLs constitute the fastest-growing subgroup of students in U.S. public 
schools, with an annual increase of about 10% and a 72% overall increase between 1992 and 
2002.“ Experts predict that one-quarter of the nation's K-12 student population will be made 
up of ELLs by 2025. ' 

Despite common assumptions to the contrary, native-born U.S. citizens predominate in the 
ELL student population: 76% of elementary school and 56% of secondary school ELLs are 
U.S. citizens, and over one-half of the ELLS in public secondary schools are second- or 
third-generation citizens. -4 The stereotype of ELLs as foreign-bom immigrants is. therefore, 
inaccurate: the substantial majority are. in fact, long-term ELLS whose academic and 
linguistic needs are not being met by our public education system. 

ELLs typically underperform on nearly every measure of academic performance. On the 
2005 National Assessment of Educational Progress, for example, only 29% of ELLs scored 
at or above the basic level in reading, compared with 75% of non-ELLs/ ELLs also drop out 
of schools at disproportionately high rates: Latino ELLs aged 16-19. for example, have a 
59% school dropout rate/ 

ELL Misclassification in Special Education 

The misclassification of ELLs in special education is a significant problem that impedes the 
academic development of this large and growing student population. Many ELLs who 
require special education services are not receiving them, while other ELLs without cognitive 
disabilities are improperly placed in special education programs that deny them full access to 
the standard academic curriculum. 


1 See http://www.ncela.gwu.edu/expert fastfaq 4.html (Source: U.S. Department of Education). 

2 See Keller-Alien. C.. “English Language Learners with Disabilities: Identification and Other State Policies 
and Issues,” Alexandria. VA: National Association of State Directors of Special Education. (August 2006). 

3 See http:7www.ed.gov nc lb methods english lepfactsheet.html (Source: U.S. Department of Education). 

4 See Capps. R.. Fix. M.. Murray, J., Ost. I. Passel. J.. & Herwantoro. S.. "The New Demography of .America's 
Schools: Immigration and the No Child Left Behind Act.” Washington. D.C.: The Urban Institute (2005). pi8. 

5 National Center for Education Statistics. National Assessment of Educational Progress (NAEP): Reading and 
Mathematics. Washington. D.C. 

6 See Fry, R.. "Hispanic Youths Dropping Out of Schools: Measuring the Problem." Washington. D.C.: Pew 
Hispanic Center (2003). p. 8. 




94 


Minorities in Special Education 


In 2001-02, there were an estimated 357,325 ELL students receiving special education 
services in U.S. public schools. Researchers have estimated that as many as three-fourths of 
ELLs enrolled in special education programs are improperly placed.' Nationally, the 
percentage of ELL students in special education programs (9%) was smaller in 2001-02 than 
the percentage of all students in special education, both overall and within individual 
disability categories. 9 

Research demonstrates patterns of both overrepresentation and underrepresentation of ELLs 
in special education programs, with significant variance between states and districts. 10 In 
2001-02, special education ELL students were enrolled in an estimated 4,744 public school 
districts in the U.S. 11 The majority of the special education ELL student population was 
enrolled in a relatively small number of districts, however. " Districts with 99 or fewer ELL 
students reported significantly higher percentages of special education ELLs (15.8% of all 
ELLs) than did districts with 100 or more ELL students (9.1% of all ELLs). Generally, the 
fewer ELLs that a district serves, the more likely the district is to classify ELLs as learning 
disabled. This may be because districts with smaller numbers of ELLs have less capacity to 
distinguish between low academic performance caused by linguistic barriers and poor 
performance caused by learning disabilities. 

Teachers and school officials attribute the widespread misclassification of ELLs to the 
challenges faced in distinguishing between second language acquisition and disability as the 
source of a student’s academic deficiencies. 1 ’ ELLs who struggle academically because of 
language barriers may share characteristics with students with disabilities. These shared 
features may include: making articulation and pronunciation errors; being distracted and 
having a short attention span, i.e. being frequently off task; reading below grade level, with 
low vocabulary and comprehension; and having low self esteem, shyness or anxiety. 

A significant shortage of teachers and school officials with sufficient training in both special 
education and English language acquisition is a primary cause of the misclassification of 
ELLs. 1 " Staff that is untrained in distinguishing between linguistic and cognitive barriers to 
achievement will likely disproportionately misclassify ELLs. Researchers have also found 
that inadequate assessments are a likely cause of the misclassification of ELLs. 16 


Zehler, A., eta!., “Descriptive Study of Services to LEP Students and LEP Students with Disabilities” 
Washington, D.C: Center for Equity and Excellence in Education (2003), p. vii. 

s See Sparks, S. “Educators struggle with ELL classification.” Education Daily , V.40, 204. November 6, 2007, 
P L 

9 Zehler, supra note 7 at 23. 

10 Keller-Alien, supra note 2 at p. 1. 

11 Zehler, supra note 7 at 24. 

12 Id. 

13 Id at 3. 

14 See Sparks, supra note 8 at 6. 

13 See Zehler, supra note 7 at 36. 

16 See, e.g., Macswan, J. and Rolstad, K., “How Language Proficiency Tests Mislead Us About Ability: 
Implications for English Language Learner Placement in Special Education,” Teachers College Record V. 108, 
No. 11 (November 2006). 




Statements 


95 


Assessments used to evaluate ELLs for disabilities often fail to identify the level of ability of 
the student in each language. Students with limited academic proficiency in both their first 
language (LI) and their second language (L2) are more likely to be misclassified as learning 
disabled. 

Recommendations for Improvement 

The majority of ELLs who struggle academically do so not because of a learning disability 
but because they are taught by underqualified teachers who employ curricula and 
instructional strategies that do not meet ELLs* academic needs. 1 Significant improvements 
in the quality' of academic sendees delivered to all ELLs will permit ELLs to develop 
academic skills at a rate comparable to their non-ELL peers and avoid the risk of 
misclassification and inappropriate placement in special education programs. 

In addition, schools must increase their capacity' to distinguish between linguistic and 
cognitive barriers to academic achievement. Despite the rapid growth of the ELL population 
nationwide, most school districts do not have policies, procedures, or mechanisms in place 
for linking ELL and special education data or for collaboration across ELL and special 
education programs. 1 ' The federal government and states must also support programs to 
encourage teachers and prospective teachers to develop expertise in this area through the 
credentialing process and/or professional development. Improving evaluation processes for 
ELLs is also critical to limiting the misclassification of ELLs in special education. 

The U.S. Department of Education must ensure that schools comply with federal laws 
requiring public education systems to take affirmative steps to help ELL students overcome 
language barriers and to prevent the misclassification of students in special education 
programs. 

Federal and state 20 \ emments and institutions of hiaher education must encouraae increased 
research into ELLs and special education. The limited research available in this area impedes 
the implementation of effective student evaluation processes and academic interventions. 

Available research suggests that schools should implement pre-referral processes for ELLs to 
limit the misclassification of ELLs. Under this model, schools create “teacher assistance 
teams” (TATs) that examine the quality of instruction received by underperforming students 
and the validity of referral and assessment processes. lw These teams are comprised of regular 
classroom teachers who meet to discuss problems in the special education evaluation process, 
brainstorm solutions, and develop action plans to correct problems that influence academic 
achievement. These teams would not involve special education personnel except when they 
are invited to sen e as consultants to the committee. This structure emphasizes that the TAT 
is under the authority and is the responsibility of the regular education system and will 
address non-cognitive barriers to academic success for ELLs. 

r See Lesaux. N., “Building Consensus: Future Directions for Research on English Language Learners at Risk 
for Learning Difficulties." Teachers College Record. V.108. No. 11 (November 2006). 

' See Keller-Alien, supra note 2 at 2. 

19 See Garcia. S. and Ortiz. A.. "Preventing Inappropriate Referrals of Language Minority Students to Special 
Education.” Silver Spring. MD: National Clearinghouse for Bilingual Education (June 1988). 




96 


Minorities in Special Education 


Another promising practice to prevent the misclassification of ELLs is the “Responsiveness 
to Intervention” (RTI) model, which promotes early identification of students who may be at 
risk for learning difficulties. RTI requires school staff to conduct early screenings of 
academics and related behaviors (e.g., class attendance, tardiness, truancy, suspensions, and 
disciplinary actions) for all students. The results of this monitoring determine which students 
need closer monitoring or an intervention. RTI imposes three tiers of interventions. During 
primary intervention (which accounts for 80% of all RTI interventions), students receive 
high-quality, research-based instruction by qualified staff in their general education setting. 
Secondary (15% of all RTI interventions) and tertiary intervention (5% of RTI interventions) 
requires school staff to continuously monitor individual student performance and implement 
interventions targeted to each student's particular linguistic and/or cognitive needs. RTI is a 
valuable model for the schools because of it both successfully identifies students with 
learning disabilities and addresses the academic success of all students. 

Conclusion 

Under- and overrepresentation of ELLs in special education programs hinders the academic 
progress of many of the nation's 5.5 million English language learners in K-12 public 
schools. Many ELLs with learning disabilities are not receiving the academic interventions 
necessary to allow them to succeed in school and life. Conversely, many ELLs without 
learning disabilities are being misidentified as learning disabled and are denied appropriate 
academic sendees and access to a rigorous standard curriculum. 

The misclassification of ELLs is caused largely by the failure to distinguish between 
academic deficiencies attributable to language barriers and those caused by learning 
disabilities. Significant improvements in the academic sendees delivered to all ELLs are 
necessary to permit these students to perform at the level of their peers and avoid 
inappropriate special education referrals. Research into the appropriate evaluation of ELLs 
for special education is also greatly needed, further, increased capacity at the school and 
district levels to ensure the appropriate evaluation of ELLs is also necessary. 



Statements 


97 


William H. Hurd: “Racial Discrepancies in Special Education” 

As a litigator in the area of education. I devote a substantial portion of my practice to 
representing parents of children with disabilities in disputes with school systems. At 
Troutman Sanders, my practice has included representing parents in IEP Team meetings, in 
administrative hearings, in federal district courts, in federal courts of appeal and. in one case, 
in the United States Supreme Court. Based on this experience—and on conversations with 
other special education attorneys—I have a perspective on the problems confronting 
minorities that may be somewhat different from the perspective of others here this morning. 
And while the problems I see as a litigator do not account for all of the numerical anomalies 
that are shown by the studies, I do believe that they account for a significant part of them. 

As an introduction to these problems, let me briefly review how the special education system 
works in terms of its basic procedures. Under the Individuals with Disabilities Education Act 
("IDEA”), parents and school systems are supposed to be equal partners in designing 
individualized education programs ("IEPs") for children with disabilities. This is obviously a 
very different model than the one that the public schools typically enjoy, where the schools 
make the decisions and where the legal rights of parents to complain are very, very limited. 
And, for many public school educators, the special education model is not a model that they 
like. 

Under the IDEA, parents and school system employees and. sometimes, others as well, form 
what is called the IEP Team. The IEP Team is supposed to decide—by consensus—whether 
the child has a disability and. if so, what the disability is, and what goals should be set for the 
child and what services are needed to meet those goals. 

In most cases, the IEP Team reaches a consensus. Where a consensus has been reached, it 
may be because the parents are truly in agreement with the school. Or it may be because the 
parents believe that the school employees are the experts and have the child's best interests at 
heart. Or it may be because the parents feel, for a variety of reasons, they have no real choice 
but to 20 alone. 

But what the law says is that, when the parents and the school system reach an impasse, then 
the parents have the right to ask for a hearing before a neutral hearing officer, where they can 
try to convince the hearing officer that what the school has proposed is inappropriate and that 
their proposal should be adopted instead. These administrative hearings—which are called 
"due process hearings"—are supposed to be relatively informal. But. as one special education 
lawyer has remarked, they involve all the emotional turmoil of a domestic relations dispute 
combined with the battle of experts in a medical malpractice case. When they are the ones 
asking for the hearing, the parents have the burden of proof. If they win. they can seek 
reimbursement for their attorney's fees, but not for their expert witness fees. And so. even 
where they win, they are going to wind up having to pay. 

And. then there are the appeals that lie ahead. The losing side—either the parents or the 
school system—may ask to have the case reviewed by a state or federal trial court, with 



98 


Minorities in Special Education 


appeals going from there up the line, all the way, in some case, to the United States Supreme 
Court. 

Now, what does this mean for minorities? And. and what does it mean in light of the fact that 
Americans of African or Hispanic ancestry compose a disproportionate number of people 
with lower socio-economic status? Based on my experience, what it means is that, as a group, 
these minorities are at a disadvantage at every step in the process: 

■ Minority parents are less likely to have their own independent medical, psychological 
or educational evaluations and more likely to depend on the evaluations conducted by 
the school system. 

■ Minority parents are less likely to have the economic resources to retain lawyers and 
the experts necessary to make a credible challenge to the school system in a due 
process hearing. 

■ Minority parents are less likely to be members of parent support groups where 
information can be exchanged and guidance obtained in how best to deal with the 
school system. 

The Commission may wish to look into the percentage of due process hearings sought by 
minorities compared with the percentage of special education students who are minorities. 

For now, I would point out that, in 2003, the General Accounting Office reported a 
“significant relationship" between household income and hearing requests. Not surprisingly, 
households with lower income are significantly less likely to request a due process hearing 
than households with higher income. 1 And, w'hen differences in household income are 
correlated with race, the result is going to be a substantial under-representation of minorities 
in the due process arena. 

When a school system sits across the table from parents at an IEP meeting, the school system 
employees try to figure out pretty quickly whether the parents are going to be compliant and 
will take what they are offered, or whether they are the sort of parents who are going to cause 
problems if the school system refuses to compromise and, if so, how far they are likely to 
push. 

Now, to understand the dynamics of this process, it is important to recognize that some 
school systems do not fully embrace the duties that the IDEA places on them. This is, to 
some extent, a continuation of the old attitude that the education of children with disabilities 
in simply not the job of the public schools. It is, to some extent, the resistance that those in 
government often show when called upon to share power with others. And, it is, to a very 
large extent, resentment over the fact that the federal government has imposed special 
education mandates but has not provided very much in the way of special education funding. 
School officials are quick to tell you. for example, that, when the law was passed 30 years 
ago. Congress promised to fund 40 percent of the costs, and that the federal funding level 


GAO, Report to the Ranking Minority Member, Committee on Health. Education. Labor and Pensions, U.S. 
Senate (Sept. 2003) at 15 n. 22. 




Statements 


99 


today is closer to 18 percent." State and local funding makes up the balance of the costs of 
special education and. inevitably, paying these costs cuts into the ability of the public schools 
to offer programs designed for the population of ty pical students. 

Special education advocates are concerned that school officials often cut comers and offer 
children something less than what the law requires in order to keep within the budgetary 
limits they have been allotted for special education. As one court observed: “Left to its own 
devices, a school system is likely to choose the educational option that will help it balance its 
budget, even if the end result of the system's indifference to a child's individual potential is a 
greater expense to society as a whole.” ' In other words, there is an inevitable institutional 
incentive for school districts to reduce costs by minimizing a child's individual needs. 

Minimizing a child's needs can have a direct affect on the disability' classification given to a 
child and on the kind and intensity of services that are provided. In my experience, for 
example, some school systems resist classifying a child as having autism and. instead, prefer 
to treat the child as mentally retarded or as emotionally disturbed. This is because programs 
dealing with mental retardation and emotional problems are typically less expensive than 
autism programs. 

Similarly, school systems often resist providing one-on-one sendees and summer sendees 
and. when they do provide those services, they often offer fewer hours than they would be 
willing to provide if parents challenged them. Fewer hours of sen ices means less progress, 
and less progress means that the child will spend more years in special education. Moreover, 
as the child grows older, the presence of unresolved special education needs creates the risk 
that the child will lose self-esteem and will suffer from teasing and bullying from his peers, 
with resulting emotional problems that also may become disabi 1 ity issues. 

In a nutshell, the special education systems works best when t\\ o things occur in 
combination: 1) when parents actually have the ability' to assert themselves and advocate for 
their child, and 2) when school systems recognize that parents ha\ e those abilities. Now, 
tying this idea to race, let me offer three final observations. 

First, to the extent that minority children receive less favorable treatment in special education 
than their white counterparts, it is not clear how much of the difference, if any. is attributable 
to racial attitudes and how much is attributable to socio-economic factors that are still closely 
correlated with race and that affect the ability of parents to assert themselves and advocate 
effectively for their child. 

Second, to ascertain how much of the difference is attributable to racial attitudes, there would 
need to be a fairly detailed regression analysis that factors out social-economic factors and 
that also accounts for regional differences, for urban-suburban-rural differences and for other 
salient differences as well. The Commission may very well want to consider undertaking 
such a study. 

: See , e.g.. K. Mehfoud. “Basic Special Education Law in Virginia.” Journal of Law and Local Government, 
Virginia State Bar, Vol. XVII. No. 1 (Summer 2007). p. 9. 

Deal v. Hamilton County Bd. ofEduc., 392 F.3d 840. 864-65 (6th Cir. 2004). 




100 


Minorities in Special Education 


Third, to the extent that racial attitudes can be isolated and quantified, it does not necessarily 
mean that the racial attitude at work is one of deliberate racial animus. It may also be a kind 
of reflexive racial stereotyping. In any special education case, a major goal of the school 
system is to handle the child's case in a way that keeps costs to a minimum. Regardless of 
the race of the school system employees, if they are dealing with a black family, they may 
make the assumption—consciously or subconsciously—that the parents are less likely to 
present a problem for them than are white parents. Being predisposed to believe that the 
black family would be willing to accept less, the school system may offer less. And, unless 
that family has the experience—or the lawyers—to assert themselves vigorously, they are 
likely to end up with less. And that basic fact pattern, multiplied many times over, can 
produce some of the disparate treatment that is seen in some of the numbers that have been 
called to the Commission's attention. 



Statements 


101 


Public Comments 

In addition to the written and oral testimony presented at the briefing, one organization and 
an individual contributed statements to the Commission for inclusion in the public record. 

Charlotte Greenbarg, President of the Broward Coalition, Inc. 

Ms. Greenbarg submitted documents showing an analysis of the Broward County. Florida, 
student population by racial and special education categories. She discussed her conclusion 
that racial disparities in educationally mentally handicapped (EMH). trainable mentally 
handicapped (TMH) and gifted categories still exist in Broward County, compared to the 
racial percentages of students in Broward County as a whole. Ms. Greenbarg is concerned, 
not that there are some disparities on a proportional basis, but by the large and consistent size 
of the disparities. She recommended that more research be done to determine whether the 
disparities were due to better diagnoses, incorrect diagnoses, or inability to read because of 
the “whole-language" method of teaching reading. 

For informational purposes, Ms. Greenbarg also sent a copy of a research brief discussing 
racial disparities in AP test-taking and score results, which she notes is outside the scope of 
the Commission's briefing but submits as a suggestion for future Commission discussion. 

Unidentified Bilingual Education Teacher in Massachusetts 

This public comment expressed concern over misidentification of minorities and other 
students in special education, as a result of teachers' inability and or unwillingness to be held 
responsible for their students' inadequate academic performance. The writer views the 
motivation for such over-identification as a consequence of “Title F’ (likely, the No Child 
Left Behind Act of 2001). In this regard, the writer stated that her school is in violation of the 
applicable laws. 

Other Submissions 

The commission also received public comments pertaining to a news media summary. They 
are not summarized here because they were not responding to materials actually published by 
the Commission. 

■ Larry Schlack. consultant 

■ Kathy Macpherson 

■ Berry Wall, former educational diagnostician 

■ Lew Romano. Ed.D. 

■ Anonymous 

















































Statements of Commissioners 


103 


Statements of Commissioners 

Gail Heriot 

Contemporary thinking about race can be disturbingly simplistic. But if anything can remind 
us of the complexity of racial issues, it is the subject of this briefing report—racial minorities 
in special education. 

There is little dispute that African-American and American-Indian children are assigned to 
special education programs more often than white and Hispanic children and that Asian- 
American children are assigned less often. 1 * 3 This is true for programs for the mentally 
retarded, the learning disabled and the emotionally disturbed. Any temptation to blame this 
entirely on racial discrimination, however, should be resisted. The situation is considerably 
more complex than such a conclusion would suggest. But the opposite temptation—to insist 
that discrimination can be ruled out as a direct factor entirely—is probably also a mistake. 
Based on the evidence presented to the Commission, it is possible that racial discrimination 
of one sort or another plays a direct, though limited, role in the overall story. 

Untangling the complex web of cause and effect is a daunting task. The number of 
contributing factors is no doubt quite large—too large to catalog here. For example, for 
whatever reason. African American infants on average weigh less at birth than white infants," 
and low birth weight is associated with increased risk for mental retardation and other 
developmental and behavioral disabilities/' It is unclear what causes the racial gap in birth 
weight, but one factor may be illegal drug use rates, 4 5 which tend to be somewhat higher for 
African Americans and American Indians than for whites and Asian Americans and which 
are associated with low birth weights and other adverse outcomes for the children of users. ' 
Another factor may be smoking rates, which have similar associations/' 


1 See generally. Briefing Transcript. See also Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 
section 1400 et seq ., which was re-authorized with amendment by Congress and signed into law by President 
Bush on Dec. 3, 2004. 

: Barbara Starfield. Sam Shapiro. Judith Weiss. Kung-Lee Liang. Knut Ra. David Paige. & Xiaobin Wang. 
Race, Family Income and Low Birth Weight. 134 4/7?. J. Epidemiology’ 1167 (1991). 

3 Cynthia A. Mervis. Pierre Decoufle. Catherine C. Murphy. & Marshalynn Yeargin-Allsopp, Low Birthweight 
and the Risk for Mental Retardation Later in Childhood. 2 Paediatric and Perinatal Epidemiology 455 (April 7, 
2008), available at http://www3.interscience.wiley.eom/joumal/l 1996197l/abstract?CRETRY=l&SRETRY=0: 
Donald H. Sykes, Elizabeth A. Hoy. John M. Bill. B. Garth McClure. Henry L. Halliday, & Mark McC. Reid. 
Behavioural Adjustment in School of Very Low Birthweight Children, 38 J. Child Psych. & Psychiatry 315 
(Dec. 7, 2006), available at http://www3.interscience.wiley.com/joumal/119143872/abstract; Rachel Nonkin 
Avchen. Keith G. Scott & Craig A. Mason. Birth Weight and School-Age Disabilities: A Population-Based 
Study, 154 Am. J. Epidemiology' 895 (2001), available at 
http://aje.oxfordjoumals.org/cgi/content/full/154 10 895. 

4 See Seetha Shankaran, Abhik Das, Charles R. Bauer. Henrietta S. Bada. Barry Lester. Linda L. Wright, and 
Vincent Smeriglio. Association Between Patterns of Maternal Substance Use and Infant Birth Weight, Length 
and Head Circumference. 114 Pediatrics e226 (August 2004). available at 
http://pediatrics.aappublications.org/cgi/content/full/114/2/e226. 

5 See Office of Applied Studies. Substance Abuse and Mental Health Serv ices Administration. Illicit Drug Use 
by Race/Ethnicity in Metropolitan and Non-Metropolitan Counties: 2004 and 2005. The National Survey on 




104 


Minorities in Special Education 


More broadly, the cycle of poverty and out-of-wedlock birth probably plays an important role 
in the comparatively high rates of special education assignment for African-American and 
American-Indian children. And if it does, the problem could grow. Back in 1960, only 5.3% 
of American live births were to unwed mothers—2.3% of live births to whites and 23% of 
live births to blacks or African Americans. By 2005, the overall proportion had skyrocketed 
to 36.9%. The rate for non-Hispanic whites is at 25.3%, for non-Hispanic blacks or African 
Americans at 69.9%, American Indians or Alaska Natives at 63.5%, for Asians or Pacific 
Islanders at 16.2%, and for Hispanics at 48.0%. * * * * * 6 7 * * 10 

There are millions of single, divorced and widowed parents who have done wonders for their 
children, but in general they could have done even more with a partner. One adult generally 
camiot do as much for a child as two, and no amount of wishful thinking will change this. If a 
single mother is not already a high-eamer at the time of her child's birth, it is difficult to see 
how she can care for the child at home, earn a living for herself and her child and receive the 
education and training she will need to assure a middle class life-style and education for her 
child in the future. There are only 24 hours in the day. 

If African-American and American-Indian women have the highest rates of out-of-wedlock 
birth, it is unsurprising that they will have higher than average poverty rates. And since 
poverty is associated with education problems no matter what the race of the children, it is 
not remarkable that African-American and American-Indian children will therefore have 
higher than average rates of assignment to special education. While racial discrimination 
probably played a role in creating the culture of poverty and out-of-wedlock birth in the first 
place, it is not clear that acknowledging this moves us closer to a solution to the problem. 
Indeed, emphasizing discrimination may make it more difficult for young women and girls to 
take control of their own lives and resist pressure to continue the cycle. 

Is it possible that race discrimination also plays a more direct and immediate role in the 
differing rates of special education placement? Yes, it is. But if it does, it is probably not the 


Drug Use and Health Report (June 21, 2007), available at 

http://ncadistore.sainhsa.gov/catalog/productDetails.aspx?ProductID=l 7703. According to this report, among 

persons aged 12 or older, 3.1% of Asians, 7.4% of Hispanics, 8.1% of whites. 9.2% of blacks or African 

Americans, 12.5% of Native Hawaiians or other Pacific Islanders, 12.6% of American Indians/Alaska Natives 

and 12.7% of those who claim two or more races reported that they had used an illicit drug in the last month. 
The difference between whites and black or African Americans in rates of usage of illegal drugs is somewhat 
understated in these numbers, because the numbers include the illicit use of prescription drugs (for which the 
white rates are higher than the black or African American rates). 

6 See Kaiser Family Foundation, Smoking Rates for Adults by Race/Ethnicity 2007, available at 

http://www.statehealthfacts.org/comparetable.jsp?ind=82&cat=2. That survey, which used data collected by the 
Centers for Disease Control and Prevention in 2007, found that 19.7% of whites, 21.5% of blacks. 16.2% of 
Hispanics, 11% of Asians/Pacific Islanders, 34.9% of American Indians/Alaska Natives and 23.1% of 
Other/Multi-Racial reported that they currently smoke every day or on some days. 

The differences in out-of-wedlock birth rate among racial/ethnic subgroups can also be quite wide. For 
example, among Asian American/Pacific Islanders in 2002, the overall percentage of live births to unwed 
mothers was 14.9%. But the among Chinese Americans, the rate was only 9%, while for Filipino Americans it 
was 20.0% and for Hawaiians it was 50.4%. See National Center for Health Statistics, Centers for Disease 

Control and Prevention. Health, United States, 2007 With Chartbook on Trends in the Health of Americans, tbl. 

10 at 143, available at http://www.cdc.gOv/nchs/data/hus/hus07.pdf#010. 




Statements of Commissioners 


105 


kind of race discrimination that is motivated by ill will. Much more likely, it is the 
unthinking kind. As William H. Hurd, a partner at Troutman Sanders LLP. described in his 
testimony before the Commission, well-educated, middle-class parents of special needs 
children are often squeaky wheels. They are more likely to take the lead in assessing whether 
their child would benefit from special education and what form that special education should 
take than are poorer, less well-educated, and often single parents. If they disagree with the 
recommendations of the school district's professionals, they are unlikely to remain silent. If 
necessary, many are in a position to hire a lawyer to ensure they are heard. In contrast, the 
children of parents who are poor and under-educated may defer to the professionals 
employed by the school district. Since they are more likely to be single parents, they may 
simply be overwhelmed with other problems. 

Should it suiprise anyone that special education professionals learn that they must carefully 
think through their plans for the children of highly-motivated parents? Should it surprise 
anyone that without that parental input and pressure, on the whole, these professionals devote 
less time thinking and re-thinking about what would be best for the child? 

When anyone spends less time thinking about an issue, they are more likely to engage in 
sloppy thinking. Sloppy thinking can lead to the use of stereotypes. Sometimes those 
stereotypes will be racial. 

The appropriate conclusion to all this, however, is very uncertain. Although the Department 
of Education has recently issued regulations that require states to keep a close eye on racial 
disproportionality, it is unclear what effect these regulations will have on the ground. If they 
cause state education officials to err on the side of not putting African-Amencan and 
American-Indian students into special education programs in which they are “over¬ 
represented,” it is unclear whether this will be beneficial. If there really are too many 
African-American and American-Indian students enrolled in special education programs and 
these students would fare better outside those programs, such a reaction will have helped to 
solve the problem. The wrongly placed students will be placed entirely in the mainstream 
classroom, and whatever stigma that is associated with special education placement wall be 
removed. But it has not yet been proven that too many African-American and American- 
Indian students are enrolled in special education programs or that large numbers of their 
assignments are a mistake. Special education may in fact be in the students' best interests. 

The problem may instead be that too few Hispanic, white or Asian American children are 
being placed into special education. Alternatively, there may be no problem with the 
assignment process at all. Despite the racial disparities, it may be that generally the right 
students are being assigned to the right programs and that there is no racial bias at work. It is 
even possible that racially disproportionate special education assignments today will correct 
problems and hence prevent racially disproportionate outcomes tomorrow. 

Based on the evidence it has before it, the Department of Education may be right to require 
states to keep a close eye on racial disproportionality in special education assignments. But 
the law is always ham-fisted when it tries to deal with complex and subtle problems. 
Department of Education officials should keep a close eye on the ettects ot its new 



106 


Minorities in Special Education 


regulations and be ever mindful of their potential to do mischief. The maxim of physicians— 
First Do No Harm—should be also the maxim of careful education officials. 



Statements of Commissioners 


107 


Arlan D. Melendez 

Erroneous placement of minority children into special education programs is a serious, 
under-reported, and under-researched problem. In many cases, appropriate classification also 
may be complicated by students' limited English language proficiency. This report provides 
an important starting place for those wishing to better understand the nature of the problem 
and possible solutions. 

Yet. this briefing report contains no findings or recommendations on how to redress the 
problem. Unlike virtually every other issued by the Commission since its 2004 change in 
leadership, the Commission majority decided to simply report what briefing speakers said. 
This is a good thing. For years 1 have urged the Commission's conservative members to 
abandon their practice of issuing findings and recommendations in reports like this where the 
Commission hasn't done independent research. A two-hour briefing, as was the basis of this 
report, can be a good platform to raise important civil rights issues. However, no follow-up 
research and investigation was done by Commission staff on this (or other recent briefing 
topics) to ensure that the record is complete and checked for accuracy. Such Commission 
briefings are not a sufficient basis for issuing findings and recommendations to the President, 
Congress, and the American people. 

My colleagues' recognition in this report that the agency did not conduct the independent 
fact-finding necessary for the topic begs the question—why didn't the Commission do more? 

The answer is simple and has nothing to do with the important problem of minority students' 
placement rates in special education programs. As currently constituted, the Commission 
cannot do more. Poor management decisions and budgetary constraints have left our national 
office staff currently unable to complete more than one or two significant research or 
investigatory projects each year. Our regional office staff are even more limited. With staff 
reorganization and improved procedures, the agency's capacity to do quality, independent 
fact-finding could be improved. However, at present, the U.S. Commission on Civil Rights is 
not meeting its full statutory mission to report on denials of equal protection. The agency’s 
reporting process is broken. 

I hope researchers and concerned government bodies will take up the important questions 
and points raised in this briefing. Also, I hope that changes in the Commission soon will 
restore its will and capacity to report on critical civil nghts issues like this. 



108 


Minorities in Special Education 


Abigail Thernstrom 

I think this is, on the whole, a good report, and thank the staff for its hard work. 

I do have, however, a few additional observations of my own. 

1. I think the report could have used a brief history of the evolution of special education 
law. The law—as is so often the case—has had both intended and unintended 
consequences. Children have been helped and children have been hurt. This is a very 
complicated subject, as the Commission's report makes clear. The potential benefits 
are generally understood and rightly applauded; those who need special educational 
attention should certainly get it. But there is a downside to some aspects of special 
education law—mostly neglected in this report. I focus in the remarks that follow on 
the problem of legally protected disruptive kids in regular classrooms. 

Federal protection for special needs youth, by now extensive and very expensive, got a quiet 
and innocuous start in 1966, when Congress added Title VI to the Elementary and Secondary 
Education Act (ESEA), passed the year before. The amendment was principally an 
appropriations measure, providing money to the states for plans designed “to meet the special 
educational and related needs of handicapped children.” “Handicapped” was a term defined 
to include the “seriously emotionally disturbed”—the decision that, in time, had an important 
impact on the ability of schools to discipline children whose behavior turned classrooms into 
chaotic scenes. 

The ESEA was further altered in 1970, with a package of amendments known as the 
Education of the Handicapped Act (EHA). The statute was still primarily a funding measure, 
and states retained considerable power to shape their own programs. But that power began to 
erode in the early 1970s, in part as a consequence of judicial decisions that made education 
an entitlement “which must be made available to all on equal terms.” 

Those decisions made education of the “disabled” a basic civil right. “Disabled” was a 
category that included children with behavioral and emotional problems that ranged from the 
merely hyperactive to the positively violent. Congress soon ratified the views from the 
bench, passing four groundbreaking bills in the mid-1970s. The first two added (and 
subsequently amended) Section 504 of the Rehabilitation Act of 1973, which gave broad 
antidiscrimination protection to the handicapped in all federally funded programs. The third 
further altered the Elementary and Secondary Education Act (ESEA) by incorporating 
language that referred to providing “full educational opportunities for all handicapped 
children.” Among the rights the statute ensured was an entitlement to due process hearings if 
the school proposed a change to an emotionally “disabled” child’s classroom placement. 
Moreover, unless such children were totally unable to learn even with extraordinary 
supplemental help, they were entitled to instruction in a “regular education environment.” 

In 1975, Congress passed the Education for All Handicapped Children Act (EAHCA), 
renamed the Individuals with Disabilities Education Act (IDEA) in 1990. The 1975 
legislation directed districts to locate and properly identify all disabled children and 



Statements of Commissioners 


109 


appropriated substantial federal funds to help states meet their special education needs. But it 
also spoke of the “unique needs" of children with disabilities and the need to provide 
extensive protection for their procedural rights. Parents thus acquired a role at every step in 
the evaluation process, and became entitled to an impartial hearing on their child's 
educational placement. Moreover, parents or the district could pursue the matter further in a 
state or federal district court. As the Supreme Court made clear in a 1988 decision, the 
emotionally disturbed child could not be removed for longer than ten days. After that brief 
expulsion, even the disruptive or even dangerous child was entitled to “stay put"—to remain 
in the classroom to which he or she had been assigned. Unless, that is, the unacceptable 
conduct was totally unrelated to the student's “disability." Or unless the hearing officer or a 
court approved another placement, or the parties agreed to one. 

IDEA remains the main federal statute that governs the educational rights of the special 
needs students. That category continues to include those with a “serious emotional 
disturbance." The phrase covers a range of children, because the definition of “serious 
emotional disturbance" is vague and capacious. “An inability to build or maintain 
satisfactory interpersonal relationships with peers and teachers." for instance, is one sign of 
disability, although what constitutes a “satisfactory" relationship is never spelled out. And 
while students who are merely “socially maladjusted" are not protected by the act. the line 
between “maladjusted" and “disturbed" is never drawn. The statutorily mandated 
multidisciplinary team that evaluates a child must fill in the blanks. 

As a consequence, the evaluation may label as emotionally “disabled" the child who was 
once called “bad" or “wild” or “difficult." .Antisocial acts have become expressions of an 
illness. Children who are, say. blind or in a wheelchair unquestionably need help, not 
discipline. But while the analogy between the wheelchair-bound child and one who is selling 
drugs or habitually starting fights is right, it is not entirely so. My concern here is with the 
regular students eager and ready to leam in a classroom in which just a handful of kids can 
make schooling extremely difficult. 

The central mandate of IDEA flows from the “illness' paradigm. Districts must create an 
individualized educational program (IEP) for all children with disabilities (emotional as well 
as physical), and to the maximum extent appropriate, they must be educated in regular 
classrooms. Exceptions can be made “only when the nature or the severity of the disability is 
such that education in regular classes with the use of supplementary aides and services 
cannot be achieved satisfactorily." 

Unlike regular pupils, special education students with severe disciplinary problems cannot be 
expelled or subjected to lengthy suspension if their behavior is at least in part related to their 
disability. Thus, the child labeled “emotionally disturbed" who throws a desk at a teacher 
cannot be kicked out of the classroom permanently unless a psychologist or other member of 
his evaluative team sees no connection between his violence and his “disability." Removing a 
special education student from a classroom for more than ten days remains procedurally very 
difficult, although the original statute was modified to allow schools to provide an alternative 
placement for up to forty-five days when a student shows up with drugs or a weapon, or a 
hearing officer has determined that the student is dangerous. 



110 


Minorities in Special Education 


The elaborate procedural protections embedded in IDEA mean, as the New York Times noted 
in 1997, that every school “has a story about the problems of disciplining children with 
disabilities—the wild kindergartner who disrupts classes for everyone else but cannot legally 
be removed from class, or the gang of youngsters caught selling drugs in which all are 
expelled except the one diagnosed with a disability.” 1 * It's long been an issue of central 
concern to the American Federation of Teachers (AFT). “Many [schools] have become afraid 
of litigation and financial penalties,” Marcia Reback, an AFT spokesman, testified at U.S. 
Senate subcommittee hearing in July 1995. 

If schools try to go to bat for the regular students whose education is disrupted by 
troublemakers, they risk, at best, endless hours compiling a proper paper trail, and, at worst, 
defeat in a courtroom many years down the road, with huge legal bills on their hands. And 
yet the education of students who are ready to leam must be severely compromised when one 
of their peers repeatedly screams at a teacher, while another rolls around on the floor and eats 
paper clips and staples. There is the problem of teachers who have become risk-averse to 
litigation. In addition, some report that those who cannot punish the “emotionally disturbed” 
child are often reluctant to put their foot down with students who are “socially maladjusted” 
but have not been classified as positively disabled. And even as schools feel compelled to 
have different rules for different youngsters, another problem arises: what the AFT has 
called the “battered teacher syndrome”—the belief that being pummeled, bitten, spit at, 
pushed, and assaulted comes with the job. 3 

When the first version of IDEA was passed in 1975, “nobody envisioned...the kinds of 
discipline problems that are on the table now,” Michael Resnick, associate executive director 
of the National School Boards Association, said in 1997. “And no one anticipated how much 
the culture would change and how big an issue discipline would become in the schools,” he 
went on. 4 5 

IDEA made the long-term suspension or expulsion of an emotionally disturbed child 
exceedingly difficult, and judicial decisions ensured due process rights for all students. 3 By 
now, the power of the federal courts and Congress, it is safe to say, is felt in every classroom. 
Violence and just plain disorder in the society and the schools have increased since sometime 
in the 1960s. The courts haven’t helped; Congress hasn't helped. But the larger problem is 
uncertainty and disagreement over a basic normative issue, as I have suggested above. To 
what extent can schools legitimately insist that all students conform to certain behavioral 
norms? And in what ways can they act when disruptive students destroy the possibility of 
education? By the late 1960s, consensus on the answers to such questions had broken down. 
And to this day, the issue remains unresolved. 


1 Peter Appelbome, “Push for School Safety Led to New Rules on Discipline,” New York Times, May 14, 1997, 
p. B8. 

: Statement of Marcia Reback. President, Rhode Island Federation of Teachers to the Labor and Human 
Resources Committee, Subcommittee on Disability Policy, U.S. Senate, July 1 1, 1995. 

3 Ibid. 

4 “Congress Revises Rules on Teaching Disabled,” The Providence Journal Bulletin, May 15, 1997, 1 A. 

5 See, e.g., Goss v. Lopez, 419 U.S. 565 (1975). 




Statements of Commissioners 


111 


Discipline problems are most pervasive in inner-city schools where the academic 
performance of the students is also most worrisome. These are settings with high numbers of 
impoverished minority youth, and as is so often the case, those who already have the least get 
the short end of the educational stick. Order in the schools is an essential ingredient in the 
drive for racial equality. Education is the key to economic opportunity: if a safe environment 
for learning cannot be secured, already deprived kids will pay a stiff, life-long price. 

2. Special education is expensive schooling; the per pupil cost is at least double that of 
regular students/ As Hilary Shelton pointed out. for some students, it is also 
“segregated"—although especially for black kids. Studies often refer to “minority" 
children, but in fact the central issue—only hinted at in the Commission report—is 
the disproportionately high number of black children in the programs. The executive 
summary of a 1997 Harvard Civil Rights Project conference findings noted, black 
children were “almost three times more likely" than those who were white “to be 
labeled ‘mentally retarded.'" and were classified as emotionally disturbed nearly 
twice as often. As those same conference findings made clear, neither Hispanics nor 
Asians have more than their share of students classified as disabled. Hispanics are 
quite strongly z/zzcfe/Tepresented in the categories “mental retardation" and “emotional 
disturbance.' and Asians dramatically zz/zr/ezrepresented across the board. 

Civil rights advocacy groups have been strong supporters of special education. And those 
deeply concerned about the education of disadvantaged students have w elcomed its steady 
and dramatic expansion over a quarter of a century/ But. in actuality their message has 
actually been quite equivocal. They have objected to the disparate impact of special 
education programs while simultaneously seeking to expand them 1 am open to the argument 
that special education classifications are often not in the best academic interest of black 
students—particularly when they contribute to racial isolation. 1 hi" i> a critically important 
point that was not discussed with enough depth at this briefing 

3. As I stated at the briefing, the disproportionately high number of black children, 
particularly, in certain special education categories does not (in my view) generally 
reflect racism by school personnel. It's not out of the realm of possibility' that in 
particular schools or districts racial stereotyping is at work, but low-income children, 
whatever their color, generally come to school less prepared to learn than those who 
are more advantaged. Moreover, there are not fewer special education placements in 
districts controlled by African .Americans, nor are black teachers less likely to classify 
minority students as SPED. 


6 See a 2002 studs b\ the United States General Accounting Office. Per Pupil Spending Differences Between 
Selected Inner Cih • and Suburban Schools Varied by Metropolitan Area. GAO-03-234 (Washington. D.C.: 
2002), 37 for the estimate that special students cost school districts twice as much on average as regular 
students. 

Harvard Civil Rights Project. "Executive Summary: Conference on Minority Issues in Special Education." 1: 
at the time it was issued, it was available at www.law.harvard.edu civilrights. 

8 Between 1976 and 2000. the proportion of students found eligible increased 65 percent—from eight percent of 
the student population to 13 percent: Digest of Education Statistics: 2001. 66. The cost has gone up even more; 
Wade Horn and Douglas Tynan. "Revamping Special Education." Public Interest. Summer 2001. 




112 


Minorities in Special Education 


In the above paragraph, I have referred to the “disproportionately high number of black 
children” assigned to special education. Looking at such disparities is important; numbers 
can suggest problems that require further inquiry and explanation. But the terms 
“disproportion,” “overrepresentation,” or “underrepresentation” are too often used as 
shorthand for racial discrimination at work. Discrimination requires evidence beyond the 
data, which are only the beginning of an inquiry. Moreover, proportionality is not the 
obvious measure—in education, employment, or contracting—of equal opportunity; almost 
all the violinists in a school orchestra may be Asian, but that is not because doors are closed 
to members of other groups. 

The higher number of black students in some SPED categories should certainly ring bells of 
alarm, but not because the policies that place them there are generally implemented by 
racially callous teachers and other school authorities, but because most of us believe the 
proper intervention can stop that train before it starts. 

On the other hand, it is important to note that while schools can play an important role in 
making sure children are reading by third grade and in other ways help keep them on a 
regular education track, the greatest influence on a child is his or her family. It is important 
that black leaders, especially, talk to black audiences about the role they can play in making 
sure their children are part of learning culture from a very early age. Some of us hope that 
President Obama and his family might serve as a role model, illustrating that many doors of 
opportunity will be wide open to those who acquire skills and knowledge —regardless of the 
color of their skin. 

4. Special education policies need to be changed. The financial incentives for schools to 
place children in special education should be removed. Several panelists pointedly 
referred to this perverse “bounty” system. As Ladner pointed out, Florida's “McKay 
Scholarships” programs and other such strategies have shown some success. In 
Florida, if a parent is dissatisfied with the school's provision of special education 
services to their child, parents must be given the option of transferring the SPED 
money that the school would have spent to a qualified educational service provider. 
Such programs turn financial incentives on their head and, in theory, give school 
systems an incentive to increase the effectiveness of their special ed programs. 

What will give schools an incentive, however, to reduce the high administrative costs 
associated with SPED? As one former special education teacher has put it, “there are extra 
degreed people on payroll, school psychologists, speech paths [pathologists], social workers, 
occupational therapists, and physical therapists all involved above and beyond the classroom 
teacher. So if you add all those salaries into the picture then, it is a lot of money for a small 
group of students per school building.” 9 

District of Columbia schools chancellor Michelle Rhee is determined to overhaul special 
education in the District, where the costs (as elsewhere) are exorbitant, inevitably resulting in 
reduced availability of funds for other students. Chancellor Rhee has a new proposal: offer. 


9 Private communication, Nov. 30, 2008. 




Statements of Commissioners 


113 


in effect, individual learning plans for all students, whatever their academic level. As the 
Washington Post descnbes it. “she wants to treat all students in the differentiated instruction 
classrooms much like special education students, with each gening an education plan 
outlining how teachers would address the child's specific strengths, weaknesses and learning 
style." 10 Rhee's plan would apply to regular students, gifted students, and special ed students. 
all of whom would be taught in the same classroom. 

Nothing ventured, nothing gained. It's at least an interesting, creative idea. 


10 V. Dion Haynes. "Rhee Wants School to Sen e as "Differentiated Learning" Lab." Washington Post. Feb. 19. 
2008. B02. 




114 


Minorities in Special Education 


Michael Yaki 

I join in Commissioner Melendez’s statement, and wish to add a few points of my own. 

Since my tenure at the Commission. I have argued that briefings were, by their very nature, 
just that—short, limited presentations on issues that can often highlight the key arguments for 
and against an issue. To that end. both Commissioner Melendez and I have argued 
vociferously against briefing “reports" that contain finding and recommendations of the 
Commission, as these reports by their very nature do not and cannot explore the depths of an 
issue to the extent that we can safely and legitimately opine on an issue. 

The fact that a report of this nature will not contain findings and recommendations is in 
keeping with the philosophy argued by Commissioner Melendez and myself. However, as a 
Commission we should not pick and choose which briefings should be treated in a similar 
way. We should adopt a transparent rule that applies to all briefings. At most, briefings 
should raise questions for further inquiry either by the Commission or the appropriate 
federal, state, or local agency with jurisdiction over the issue at question. 

Our role as a Commission has been to be the watchdog of civil rights for the federal 
government, indeed, for the nation. It is a role that we are uniquely suited for should we 
choose to exercise it. There are many important issues, some new, some old that continue to 
vex our nation's quest to become a more perfect union that guarantees liberty and quality for 
all. We must rededicate ourselves to this mission, rather than engage in partisan bickering— 
instead of bipartisan leadership—that this Commission and this country' deserves. 

The question facing many who care about civil rights in this countr\ is whether this 
Commission has the ability to do that in its current configuration and authorization, or 
whether it needs new statutory authority and guidance to redirect its mission. Unless we, as 
Commissioners, choose to do it ourselves, then it may be taken away from us—with no 
guarantees that any new 2.0 iteration will be any more successful or even pass legislative 
muster. 

Both Commissioner Melendez and I are prepared to w r ork in a bipartisan manner to revitalize 
this Commission. Our question, which we cannot answer, is whether our colleagues are 
similarly motivated. For the sake of those in our country who still experience discrimination 
in their lives, their work, their school, who need the laser focus of a fully engaged 
Commission on Civil Rights, we hope the answer is in the affirmative. 



Biographies 


115 


Speaker Biographies 

Stephanie J. Monroe 

In 2005, President George W. Bush nominated Stephanie J. Monroe as Assistant Secretary 
for Civil Rights in the U.S. Department of Education. She is Secretary Spellings' primary 
adviser on civil rights and is responsible for enforcing U.S. civil rights laws as they pertain to 
education. She supervises proactive enforcement activities, regulatory and policy 
development. Originally from Baltimore, Maryland. Monroe earned her bachelor's degree in 
government and politics from the University' of Maryland-College Park, and juris doctor 
degree from the Universitv of Baltimore. She began her career in the U.S. House of 
Representatives where she served as a legislative assistant for Rep. Bobbi Fiedler (R-CA), 
and Sen. Gordon Humphrey (R-NH ). She also served as the chief counsel and minority staff 
director of the Senate Labor and Human Resources Subcommittee on Children and Families, 
and chief counsel of the U.S. Senate Committee on Health, Education. Labor and Pensions. 

Martin Gould 

Dr. Gould is a director of research and technology at the National Council on Disability 
(NCD). an independent federal agency. His current work activities include: national 
performance indicators, K-12 public education, electronic and information technology and e- 
govemment, and homeland security. Prior to joining NCD in 2000. he worked as director of 
outcomes research for an international nonprofit. Prior to that work, he served as an assistant 
superintendent for student and family support services in a large urban school system. 

Reginald M. Felton 

Reginald M. Felton is Director of Federal Relations for the National School Boards 
Association (NSBA), where he is responsible for developing and implementing 
comprehensive legislative strategies and representing the interests of local school boards. His 
legislative areas include the Elementary and Secondary Education Act/No Child Left Behind 
(NCLB). reauthorization: Individual with Disabilities Education Act (IDEA)/Special 
Education; and a broad range of business operations issues. Prior to joining NSBA, he was a 
senior executive with the Department of the Navy. During his career. Felton was responsible 
for a wide range of functions, including human resources management, shore installation 
management, and congressional relations in civilian matters. For ten years, he w r as an elected 
school board member with the Montgomery County Board of Education in Maryland, and is 
currently on the Board of Trustees at Montgomery College. Mr. Felton has a bachelor's 
degree in sociology from Howard University, and a master's degree in urban studies from 
Tulane University. He has extensive experience in the areas of public policy, management, 
legislative advocacy, communications and organizational development at the national level 
within the public and nonprofit sectors. 



116 


Minorities in Special Education 


Matthew Ladner 

Dr. Matthew Ladner is Vice President of Research at the Goldwater Institute. Prior to joining 
Goldwater, he was Director of State Projects at the Alliance for School Choice, where he 
provided support and resources for state-based school choice efforts. Dr. Ladner has written 
numerous studies on parental choice in education, education reform, and the role of race in 
special education placements. He is a graduate of the University of Texas at Austin and 
received both a master’s and doctorate in political science from the University of Houston. 

He served previously as director of the Goldwater Institute's Center for Economic Prosperity 
and as Vice President of Policy and Communications at Children First America. 

Daniel J. Reschly 

Mr. Reschly is Professor of Education and Psychology in Peabody College, Vanderbilt 
University, where he also chaired its Department of Special Education. Prior to Vanderbilt, 
he directed the Iowa State University School Psychology Program where he achieved the 
rank of Distinguished Professor of Psychology and Education. Reschly earned graduate 
degrees at the University of Iowa and the University of Oregon, and served as a school 
psychologist in Iowa, Oregon, and Arizona. He has published on the topics of response to 
intervention, reduction of special education disproportionality, identification of disabilities 
(high incidence, minority issues), and policy issues in special education. He has trained 
teachers, principals, and related services personnel in 27 states regarding implementation of 
the response to intervention process in general, remedial, and special education. He has been 
active in state and national leadership roles, including President of the National Association 
of School Psychologists, Editor of the School Psychology Review, Chair of NASP Graduate 
Program Approval, President of the Society for the Study of School Psychology, and Chair of 
the Council of Directors of School Psychology Programs. Reschly served on the National 
Academy of Sciences Panels on Standards-based Reform and the Education of Students with 
Disabilities and Minority Overrepresentation in Special Education. He chaired the National 
Academy Panel on Disability Determination in Mental Retardation. 

Hilary O. Shelton 

Mr. Shelton is the director of the federal legislative and national public policy division of the 
NAACP in Washington, DC. He is responsible for advocating the national civil rights 
organization’s federal public policy issue agenda, dealing with issues such as affirmative 
action, equal employment protection, access to quality education, voting rights protection, 
federal sentencing reform, and a host of civil rights enforcement, expansion, and protection 
issues. Prior to this position, he served as Federal Liaison/Assistant Director to the 
Government Affairs Department of The United Negro College Fund in Washington, DC, and 
as Federal Policy Program Director of the United Methodist Church’s social justice advocacy 
agency, The General Board of Church & Society. Mr. Shelton serves on a number of national 
boards of directors including The Leadership Conference on Civil Rights, The Center for 
Democratic Renewal, the Coalition to Stop Gun Violence, and the Congressional Black 
Caucus Institute, among many others. Originally from St. Louis, Missouri, Mr. Shelton holds 
degrees in political science, communications, and legal studies from Howard University in 



Biographies 


117 


\\ ashington. DC. the University of Missouri in St. Louis, and Northeastern University in 
Boston. Massachusetts, respectively. 

Peter A. Zamora 

As the Washington. DC Regional Counsel of the Mexican American Legal Defense and 
Educational Fund (MALDEF), Mr. Zamora develops and manages federal legislative 
strategies regarding education law and policy, voting rights, immigration, and other Latino 
civil rights concerns. He serves as co-Chair of the Hispanic Education Coalition, which 
unites 26 key national and local organizations in support of improved educational 
opportunities for Latino students and families. Mr. Zamora has testified before the U.S. 
House Committee on Education and Labor and the U.S. Senate Judiciary Committee. Prior to 
joining MALDEF. Mr. Zamora served as a bilingual-credentialed English teacher in 
California public schools, a legal consultant to the District of Columbia Public Schools, and 
an attorney in a private federal education law practice. He has a Bachelor of Arts from the 
University of California at Berkeley, a teaching credential from the University of San 
Francisco, and a juris doctor degree from the Georgetown University Law Center. 

William H. Hurd 

Since 2004. Mr. Hurd has been an attorney with Troutman Sanders LLP in Richmond. 
Virginia, specializing in complex litigation. He received his bachelor’s and law degrees from 
University of Virginia, and has served as State Solicitor General. Senior Counsel to the 
Attorney General. Deputy Attorney General, and Assistant Attorney General in the 
Commonwealth of Virginia. He has argued three cases before the U.S. Supreme Court 
personally, including two cases involving the First Amendment and one involving federal 
special education law. He also served as lead counsel for the Commonwealth in a special 
education case, securing the right of states to discipline students for misconduct unrelated to 
their disabilities (Virginia Dep 7. of Education v. Riley). 






























































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